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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 


HARRY  G  SADICOFF 


I 


A  TREATISE 


ON    THE 


AMEEICAX  LAW  RELATING  TO  MINES 
AND  MINERAL  LANDS 


"WITHIN    THE 


PUBLIC  LAXD  STATES  AND  TERRITORIES 


GOVERNING   THE   ACQUISITION  AND   ENJOY^MENT 

OF   MINING  RIGHTS   IN  LANDS   OF 

THE  PUBLIC  DOMAIN 

BT 

CURTIS  H.  LINDLEY 

Of  the  San  Francisco  Bar 

THIRD  EDITION 

IN    THREE   VOLUMES 

VOLUME  II 


"7  hold  every  man  a  debtor  to  his  profession ;  from  the 
which,  as  men  of  course  do  seeJc  to  receive  countenance  and 
profit,  so  ought  they  of  duty  to  endeavor  themselves,  by  way 
of  amends,  to  be  a  help  and  ornament  thereto." 

Bacoti's  Tracts. 


"Et    opus    desperatum,    quasi    per    medium    profundum 
euntes,  coelesti  favore  jam  adimplevimus." 

— From  Dedication  of  Justinian's  Institutes. 


SAX  FEANCISCO 

BANCROFT-WHITNEY  COMPANT 
1914 


Copyright,  1897, 

BY 

CUETIS    H.    LINDLEY 

Copyright,  1903, 
BY 

CUETIS    H.    LINDLEY 

Copyright,    1914, 
BY 

CXmTIS    H.    LINDLEY 


T 

I9l4- 


The  Filmer  Beothers  Electeotype  Company 

Typographers  and  Steeeotypess 

San  rBANCisco 


CHAPTER    II. 

LODE  CLAIMS,  OE  DEPOSITS  "IN  PLACE.'» 

ABTica:^  L  Introductoet. 

II.  The  Location  and  Its  Requieements. 

m.  The  Discovery. 

IV.  The  Discovery  Shaft  and  Its  Equivalent. 

V.  The  Preliminary  Notice  and  Its  Posting. 

Vl.  The  Surface  Covered  by  the  Location — Its  Form  and 
Relationship  to  the  Located  Lode. 

Yn.  The  Marking  of  the  Location  on  the  Surface. 

VIIL  The  Location  Certificate  and  Its  Contents. 

IX.  The  Eecord. 

X.  Change  of  Boundaries  and  Amended  or  Additional  Looa* 

TioN  Certificates. 

XI.  Relocation  of  Forfeited  ob  Abandoned  Claims, 

XII.  Lodes  within  Placers. 

Aeticle  I.    Introductory. 

S  322.     Introductory.  occurring  in  veins  as  affecting  thl 

S  323.     The  metallic  or  nonmetal-      right   of   appropriation    under  the 

lie  character  of  deposits      laws  applicable  to  lodes. 

§  322.  Introductory. — ^Tn  the  preceding  chapters  of 
this  work,  it  has  been  demonstrated  that  only  the 
public  mineral  lands  of  the  United  States  may  be  ap- 
propriated under  the  mining  laws.^  While  it  is  true 
that  the  words  "public  lands"  are  not  always  used  in 
the  same  sense  and  their  true  meaning  and  effect  are 
to  be  determined  by  the  context  in  which  they  are 
used,^  yet,  generally  speaking,  by  "public  lands"  is 
meant  such  as  are  subject  to  sale  or  disposal  under 

1  Ante,  §  112. 

«  United  States  v.  Blendauer,  128  Fed.  910,  913,  63  C.  C.  A.  636j 
United  States  v.  Denver  &  Rio  Grande  R7.  Co.,  190  Fed.  825,  8i7. 

(731) 


64S735 


§  322  INTRODUCTORY.  732 

general  laws.*  Land  to  which  any  claims  or  rights  of 
others  have  attached  does  not  fall  within  the  designa- 
tion of  ''public  lands."*  As  was  said  by  the  supreme 
court  of  the  United  States, — 

Public  lands  belonging  to  the  United  States  for 
whose  sale  or  other  disposition  congress  has  made 
provision  by  its  general  laws,  are  to  be  regarded  as 
legally  open  for  entry  and  sale  under  such  laws,  un- 
less some  particular  lands  have  been  withdrawn 
from  sale  by  congressional  authority  or  by  an  exec- 
utive withdrawal  under  such  authority,  either  ex- 
press or  implied.' 

3  McFadden  v.  Mountain  View  M.  &  M.  Co.,  97  Fed.  670,  680,  38 
C.  C.  A.  354;  In  re  Logan,  29  L.  D.  395;  Nome  Transp.  Co.,  29  L.  D. 
447;  State  of  Louisiana,  30  L.  D.  276. 

♦  Ante,  I  SO;  Newhall  v.  Sanger,  92  U.  S.  761,  762,  23  L.  ed.  769; 
Bardon  v.  N.  P.  E.  E.,  145  U.  S.  535,  538,  12  Sup.  Ct.  Eep.  856,  36 
L.  ed.  806;  Mann  v.  Tacoma  Land  Co.,  153  U.  S.  273,  283,  14  Sup.  Ct. 
Eep.  820,  38  L.  ed.  714;  Wilcox  v.  Jackson,  13  Pet.  (U.  S.)  498,  510, 
10  L.  ed.  264;  Cameron  v.  United  States,  148  U.  S.  301,  309,  13  Sup. 
Ct.  Eep.  595,  37  L.  ed.  459;  United  States  v.  Tygh  Valley  Land  &  L. 
S.   Co.,   76   Fed.   693,   694;    James  v.   Iron   Co.,   107   Fed.   597,   603,   46 

C.  C.  A.  476;  Hartman  v.  Warren,  76  Fed.  157,  160,  22  C.  C.  A.  30; 
Kansas  Pacific  Ey.  Co.  v,  Dunmeyer,  113  U.  S.  629,  641,  5  Sup.  Ct. 
Eep.  566,  28  L.  ed.  1122;  Teller  v.  United  States,  113  Fed.  273,  281, 
51  C.  C.  A.  230;  Scott  v.  Carew,  196  U.  S.  100,  110,  25  Sup.  Ct.  Eep. 
193,  49  L.  ed.  403;  Northern  Lumber  Co.  v.  O'Brien,  139  Fed.  614, 
616,  71  C.  C.  A.  598;  affirmed  on  appeal,  204  U.  S.  190,  196,  27  Sup. 
Ct.  Eep.  249,  51  L.  ed.  438;  Union  Pacific  E.  E.  Co.  v.  Harris,  76  Kan. 
255,  91  Pac.  68. 

6  Lockhart  v.  Johnson,  181  U.  S.  516,  520,  21  Sup.  Ct.  Eep.  665,  45 
L.  ed.  979.     See  Baca  Float  No.  3,  30  L.  D.  497. 

In  the  nomenclature  of  the  public  land  laws,  the  word  "withdrawal" 
is  generally  used  to  denote  an  order  issued  by  the  president,  secretary 
of  the  interior,  commissioner  of  the  general  Tand  office,  or  other  proper 
officer,  whereby  public  lands  are  withheld  from  sale  and  entry  under 
the  general  land  laws,  in  order  that  presently  or  ultimately  they  may 
be  applied  to  some  distinctly  public  use  or  disposed  of  in  some  special 
way.  Sometimes  these  orders  are  not  made  until  there  is  an  immediate 
necessity  therefor,  but  more  frequently  the  necessity  for  their  being 
made  is  anticipated.     Hans  Oleson,  28  L.  D.  25,  31;   In  re  Cox,  31  L. 

D.  193.  For  a  discussion  of  executive  withdrawals  generally,  see  ante, 
§  200b. 


733  INTRODUCTORY.  §  322 

We  have  also  attempted  to  illustrate"  the  nature  and 
character  of  the  appropriation  under  laws  (other  than 
those  exclusively  applicable  to  the  acquisition  of  min- 
eral lands)  which  operate  as  a  segregation  of  a  given 
tract  from  the  body  of  public  land,  and  inhibit  its 
acquisition,  although  mineral  in  character,  under  the 
mining  laws.     What  constitutes  such  an  appropriation 
of  mineral  lands  under  these  last-named  laws  as  will 
remove  them  from  the  category  of  "public  lands"  and 
inhibit   their  acquisition  by  other  mining  claimants 
can  be  determined  only  after  an  analysis  of  the  law 
regulating    the    acquisition    of    title    to    such    lands. 
After  we  shall  have  outlined  the  methods  provided  by 
law  for  such  acquisition,  we  shall  endeavor  to  explain 
fully  the  nature  and  extent  of  the  title  so  acquired, 
the  tenure  by  which  it  is  held,  the  property  rights 
flowing  therefrom,   and  the  conditions  under  which 
such  rights  may  be  lost  or  extinguished.     The  general 
statement  may  here  be  properly  made,  however,  that 
a   perfected,   valid   appropriation   of   public   mineral 
lands,  under  the  mining  laws,  operates  as  a  withdrawal 
of  the  tract  from  the  body  of  the  public  domain,  and 
so  long  as  such  appropriation  remains  valid  and  sub- 
sisting the  land  covered  thereby  is  deemed  private 
property.^ 

6  Ante,  §§  112-219. 

T  Gwillim  V.  Donnellan,  115  U.  S.  45,  49,  5  Sup.  Ct.  E«p.  1110,  29 
L.  ed.  348,  15  Morr.  Min.  Rep.  482;  Belk  v.  Meagher,  104  U.  S.  279, 
283,  26  L.  ed.  735,  1  Morr.  Min.  Rep.  510;  S.  C,  3  Mont.  65;  McFeters 
V.  Pierson,  15  Colo.  201,  22  Am.  St.  Rep.  388,  24  Pac.  1076,  1077; 
Iron  S.  M.  Co.  v.  Campbell,  17  Colo.  267,  29  Pac.  513;  Seymour  v. 
Fisher,  16  Colo.  188,  27  Pac.  240,  241;  Fisher  v.  Seymour,  23  Colo.  542, 
49  Pac.  30,  33;  Garthe  v.  Hart,  73  Cal.  541,  15  Pac.  93,  94,  15  Morr. 
Min.  Rep.  492;  Souter  v.  Maguire,  78  Cal.  543,  21  Pac.  183;  Armstrong 
V,  Lower,  6  Colo.  393;  Lebanon  M.  Co.  v.  Cons.  Rep.  M.  Co.,  6  Colo. 
371;  Faxon  v.  Barnard,  4  Fed.  702,  2  McCrary,  44,  9  Morr.  Min.  Rep. 
515;   Meydenbauer  v.  Stevens,  78  Fed.  787,  18  Morr.  Min.  Rep.  578; 


§323 


INTRODUCTOBT,  '34 


We  are  now  to  consider  the  manner  in  whicli  public 
mineral  lands  containing  veins  or  lodes  of  quartz  or 
other  rock  in  place  may  be  lawfully  appropriated. 

§  323.  The  metallic  or  nonmetallic  character  of 
deposits  occurring  in  veins  of  rock  in  place  as  affect- 
ing the  right  of  appropriation  under  the  laws  applica- 
ble to  lodes. — In  defining  what  constitutes  ''mineral 
land"  within  the  meaning  of  the  acts  of  congress, 
using  that  term  as  the  legal  equivalent  of  the  various 
words  and  phrases  of  a  kindred  nature  found  in  the 
mining  laws,^  we  have  heretofore  treated  the  subject 
regardless  of  the  form  in  which  the  deposits  occur — 
i.  e.,  whether  *'of  rock  in  place,"  as  in  quartz  veins,  or 
not  **in  place,"  as  in  the  case  of  auriferous  gravels 
and  other  substances  encountered  in  surface  beds." 

Stratton  v.  Gold  Sovereign  M.  &  T.  Co.,  1  Leg.  Adv.  350;  S.  C,  89 
Fed.  1016,  32  C.  C.  A.  607;  Matoa  G.  M.  Co.  v.  Chicago  Cripple 
G.  M.  Co.,  vol.  178  Min.  &  Scientific  Press,  p.  374;  Cone  v.  Roxana 
G.  M.  Co.  (Colo.),  2  Leg.  Adv.  350;  Mt.  Rosa  M.  M.  &  L.  Co.  v. 
Palmer,  26  Colo.  56,  77  Am.  St.  Rep.  245,  56  Pac.  176,  50  L.  R.  A. 
289,  19  Morr.  Min.  Rep.  696;  Kinney  v.  Fleming,  6  Ariz.  263,  56  Pac. 
723,  20  Morr.  Min.  Rep.  13;  Gurney  v.  Brown,  32  Colo.  472,  77  Pac. 
357,  359;  affirmed.  Brown  v.  Gurney,  201  U.  S.  184,  191,  26  Sup.  Ct. 
Rep.  509,  50  L.  ed.  717;  Farrell  v.  Lockhart,  210  U.  S.  142,  146,  28 
Sup.  Ct.  Rep.  681,  52  L.  ed.  994,  16  L.  R.  A.,  N.  S.,  162;  Bradford 
V.  Morrison,  212  U.  S.  389,  395,  29  Sup.  Ct.  Rep.  349,  53  L.  ed.  564; 
Swanson  v.  Sears,  224  TJ.  S.  180,  32  Sup.  Ct.  Rep.  455,  56  L.  ed.  721; 
Porter  v.  Tonopah  North  Star  T.  &  D.  Co.,  133  Fed.  756,  758 ;  S.  C,  on 
appeal,  146  Fed.  385,  386,  76  C.  C.  A.  657;  Malone  v.  Jackson,  137  Fed. 
878,  880,  70  C.  C.  A.  216;  Reed  v.  Munn,  148  Fed.  737,  757,  80  C.  C.  A. 
215;  Willitt  v.  Baker,  133  Fed.  937,  947;  Zerres  v.  Vanina,  134  Fed. 
610,  614;  S.  C,  in  error,  150  Fed.  564,  80  C.  C.  A.  366;  Peoria  &  Colo- 
rado M.  &  M.  Co.  V.  Turner,  20  Colo.  App.  474,  79  Pac.  915,  917;  Hoban 
V.  Boyer,  37  Colo.  185,  85  Pac.  837;  Nash  v.  McNamara,  30  Nev.  114, 
133  Am.  St.  Rep.  694,  93  Pac.  405,  406,  16  L.  R.  A.,  N.  S.,  168; 
Moorehead  v.  Erie  M.  &  M.  Co.,  43  Colo.  408,  96  Pac.  253,  255. 

«  Ante,  §  86. 

•  Ante,  §  95. 


735     METALLIC  OR  NONMBTALLIC  CHARACTER  OP  DEPOSITS.      §  323 

The  conclusions  there  reached  ^°  were  intended  to  ap- 
ply to  all  classes  of  deposits,  without  any  attempt  at 
classification  as  to  form  of  occurrence.  We  are  now 
called  upon  to  consider  a  special  class  of  mineral  lands, 
and  to  determine  to  what  extent,  if  any,  the  metallic 
or  nonmetallic  character  of  the  deposits  found  in  veins 
of  rock  in  place  controls  the  manner  in  which  lands 
containing  them  may  be  appropriated. 

The  act  of  July  26,  1866,  provided  for  the  acquisi- 
tion of  title  to  veins  or  lodes  of  quartz  or  other  rock 
in  place  bearing  gold,  silver,  cinnabar,  or  copper.  By 
necessary  intendment  it  excluded  all  other  classes  of 
metallic  substances,  as  well  as  all  which  were  non- 
metalliferous.  The  placer  law  of  July  9,  1870,  ex- 
tended the  right  of  entry  and  patent  "to  claims  usu- 
ally called  'placers,'  including  all  forms  of  deposit, 
excepting  veins  of  quartz  or  other  rock  in  place." 

The  act  of  May  10,  1872,  provided  in  terms  for  the 
appropriation  of  lands  containing  veins  or  lodes  of 
quartz  or  other  rock  in  place  bearing  gold,  silver,  cin- 
nabar, lead,  tin,  copper,  or  other  valuable  deposits. 

This  is  preserved  in  the  Revised  Statutes,  which  also 
contain  the  provisions  of  the  placer  law  of  1870,  here- 
tofore referred  to.  Therefore,  under  the  existing  law 
we  find  the  classification  to  be  as  follows: — 

(1)  Lands  containing  veins  or  lodes  of  quartz  or 
other  rock  in  place  bearing  gold,  silver,  cinnabar,  lead, 
tin,  copper,  or  other  valuable  deposits ;^^ 

(2)  Claims  usually  called  "placers,"  including  all 
forms  of  deposit,  excepting  veins  of  quartz  or  other 
rock  in  place."    And  in  prescribing  the  method  for 

10  Ante,  §  98. 

11  Rev.  Stats.,  §  2320;  Comp.  Stats.  1901,  p.  1424;  5  Fed.  Stats. 
Ann.  8. 

12  Kev.  Stats.,  §  2329;  Comp.  Stats.  1901,  p.  1432;  5  Fed.  Stats.  Ann.  42. 
For  an  elaborate  discussion  of  this  classification,  see  Webb  v.  American 


§  323  INTRODUCTORY.  736 

obtaining  patents,  both  classes   seem  to  have  been 
grouped  under  the  term  "valuable  deposits."" 

It  may  be  said  that,  ordinarily,  nothing  but  metal- 
liferous ores  are  encountered  in  veins  of  rock  in  place. 
There  are,  however,  exceptions  to  this  rule.  Coal 
occurs  in  veins,  and  in  many  instances  with  as  pro- 
nounced dip  and  strike  as  in  the  auriferous  quartz 
lodes.  But  lands  containing  coal  are  sold  under  spe- 
cial laws.'*  Marble,  borax,''  onyx,'®  asphaltum,  gilso- 
nite,"  or  uintaite  (a  species  of  asphaltum),  gypsum, 
talc,  graphite,  rock  phosphates,"^  chalk,  marls,  oil- 
stones, mica,  asbestos,  fluorspar,  sulphur,  and  mineral 
paint  are  nonmetallic  substances,  and  occur  in  veins  of 
rock  in  place.'^  All  of  these  have  commercial  value, 
and  in  many  instances  yield  as  much  profit  in  propor- 
tion to  the  cost  of  exploitation  and  extraction  as  the 

Asphaltum  Co.,  157  Fed.  203,  84  C.  C.  A.  651;  Henderson  v.  Fulton,  So 
L.  D.  652;  Harry  Lode  M.  Claim,  41  L.  D.  403. 

13  Eev.  Stats.,  §  2325;  Comp.  Stats.  1901,  p.  1429;  5  Fed.  Stats.  Ann. 
31. 

1*  Leonard  v.  Lennox,  181  Fed.  760,  761. 

15  See  McCann  v.  McMillan,  129  Cal.  350,  62  Pac.  31,  33,  21  Morr. 
Min.  Rep.  6. 

16  Utah  Onyx  Development  Co.,  38  L.  D.  504. 

17  Webb  V.  American  Asphaltum  M.  Co.,  157  Fed.  203,  84  C.  C.  A.  651. 
17a  Harry  Lode  M.  Co.,  41  L.  D.  403. 

18  The  circuit  court  of  appeals  in  Webb  v.  American  Asphaltum  Co., 
supra,  adopts  the  reasoning  of  the  text  as  it  appeared  in  the  second 
edition  of  this  work  and  applies  the  rule  to  a  vein  of  gilsonite  similar  to 
the  one  shown  in  figure  30a,  without,  however,  referring  to  the  author. 
The  same  court  applied  the  same  reasoning  to  a  bed  of  phosphate  rock 
in  San  Francisco  Chemical  Co.  v.  Duffield,  201  Fed.  830,  836.  See, 
contra,  Duffield  v.  San  Francisco  Chemical  Co.,  198  Fed.  942,  decided  by 
a  United  States  district  court  in  another  circuit.  The  land  department 
follows  and  applies  the  rule  to  onyx  occurring  in  veins,  holding  it  to  be 
subject  to  location  as  a  lode.  Utah  Onyx  Development  Co.,  38  L.  D. 
504.     Also  to  well  phosphates.     Harry  Lode  M.  Claim,  41  L.  D.  403. 


737     MET/SX,LIC  OR  NONMET.VLLIC  CHARACTER  OF  DEPOSITS.      §  323 

metalliferous  veins.  When  any  of 
these  substances  occur  in  the  form 
of  superficial  deposits,  lands  con- 
taining them  may  be  appropriated 
under  the  placer  laws,  as  they  are 
not  veins  of  rock  in  place.  But  sup- 
pose they  occupy  a  vertical  or  pro- 
nounced inclined  position  in  the 
mass  of  the  mountain.  A  typical 
illustration  showing  the  occurrence 

° ' "''         of  nonmetallic  substances  in  veins 

FiGUKE  30a.  is  afforded  by  the  deposits  of 
Tiintaite,  or  gilsonite,  found  in  Utah.  Figure  30a  is 
a  cross-section  taken  from  the  monograph  of  Mr. 
George  H.  Eldridge  on  these  deposits."  So  far  as 
structure  is  concerned,  it  exhibits  the  highest  type  of 
a  fissure  vein,  and  if  the  vein-filling  or  gangue  carried 
metalliferous  ores  it  would  respond  fully  to  the  scien- 
tific as  well  as  popular  definition  of  a  true  fissure 
vein.  In  the  illustration  the  vein  occupies  practically 
a  vertical  position  which  eliminates  from  discussion 
the  subject  of  the  extralateral  right.  But  a  reading 
of  Mr.  Eldridge 's  monograph  shows  that  in  many  of 
these  deposits  the  plane  of  the  vein  is  inclined,  ren- 
dering the  discussion  which  follows  pertinent.  How 
is  this  class  of  deposits  to  be  appropriated!  If  by 
the  placer  laws,  and  if  they  are  on  surveyed  lands, 
they  must  be  taken  up  in  some  subdivision  of  the  gov- 
ernment sur\^eys.  If  the  deposit  should  exist  in  the 
form  of  an  ideal  vein,  there  would  be  but  one  expos- 
ure upon  which  a  discovery  could  be  based,  and 
nothing  overlying  the  dip  beyond  the  vertical  plane 
drawn  through  the  surface  boundary  of,  for  example,  a 

19  IT.  S.  Cfcolofjical  Survey,  17  Ann.  Eep.,  part  1,  p.  932. 
Lindley  on  M. 


§  323  INTRODUCTORY.  738 

twenty-acre  tract,  could  be  located  without  discovery, 
and  discovery  would  be  impossible  except  by  sinking 
vertical  shafts  at  great  expense,  with  no  adequate  pro- 
tection in  the  meanwhile  in  the  possession  of  the  tract.^" 
We  cannot  see,  since  the  act  of  1872  was  passed  increas- 
ing the  number  of  terms  used  in  the  prior  law,  that 
there  is  any  foundation  to  support  the  contention  that 
veins  or  lodes  must  be  metalliferous  in  order  to  be 
appropriated  under  the  lode  laws.  The  extralateral 
right  may  be  of  as  much  value  to  the  proprietor  of  a 
mica,  rock  phosphate,  asphaltum,  gilsonite,  or  talc 
vein  as  a  gold  vein.  The  act  itself  in  terms  makes 
no  distinction  based  upon  the  chemical  composition 
of  the  deposit.  But  it  groups  the  classes  according 
to  the  form  in  which  the  valuable  deposits  occur.  In  ^ 
our  judgment,  there  is  no  more  reason  for  insisting 
that  veins  or  lodes  of  mica,  graphite,  asphaltum,  gil- 
sonite, or  other  nonmetallic  substance  in  place  should 
be  located  as  placers  than  it  has  to  require  cinnabar 
deposits  to  be  located  as  lodes,  independently  of  the 
form  of  their  occurrence.^^ 

This  is  the  view  announced  by  the  circuit  court  of 
appeals,  eighth  circuit,  involving  gilsonite  occurring 
in  a  vein  as  indicated  in  figure  30a,  supra.^"^ 

How  shall  they  be  appropriated? 

The  term  "deposits"  used  in  section  twenty-three 
hundred  and  twenty  of  the  Revised  Statutes  is  just 
as  comprehensive  as  the  same  term  found  in  section 
twenty-three  hundred  and  twenty-nine. 

The  deliberate  addition  in  the  statute  of  the  term 
"valuable  deposits"  to  the  enumeration  of  metallic 

20  Unless,  perhaps,  we  are  permitted  to  rely  upon  the  California 
doctrine  protecting  oil  placer  locators  to  the  full  extent  of  their  claims 
while  they  are  engaged  in  boring  or  drilling  for  oil,  discussed  in  §  218. 

21  Copp's  Min.  Dec.  47,  60. 

22  Webb  V.  American  Asphaltum  Co.,  157  Fed.  203,  84  C.  C.  A.  651. 


739     METALLIC  OR  NONMETALLIC  CHARACTER  OF  DEPOSITS.      §  323 

substances  is  of  itself  evidence  of  the  highest  charac- 
ter that  the  intention  of  the  lawmakers  was  to  enlarge 
the  scope  of  the  lode  laws,  and  embrace  everj^  char- 
acter of  deposit  found  in  veins  of  rock  in  place  which 
fall  within  the  meaning  of  *' mineral"  in  its  broadest 
sense.  If  the  meaning  of  the  term  "valuable  de- 
posits" was  intended  to  be  restricted  to  such  sub- 
stances as  were  metallic  in  their  nature,  it  is  fair  to 
presume  that  congress  would  have  used  the  term 
"valuable  metallic  or  metalliferous  deposits.""  Gold 
occurs  in  veins  of  rock  in  place,  and  when  so  found  the 
land  containing  it  must  be  appropriated  under  the 
laws  applicable  to  lodes.  It  is  also  found  in  placers, 
and  when  so  found  the  land  containing  it  must  be  ap- 
propriated under  the  laws  applicable  to  placers.  Iron 
ore  is  found  in  veins  of  rock  in  place.  It  also  occurs 
in  beds  and  superficial  deposits.^*  "Where  it  is  found 
in  veins,  lands  containing  it  must  be  appropriated 
under  the  lode  laws.  "Where  it  is  not  found  in  veins 
of  rock  in  place,  the  proceedings  to  obtain  government 
title  are  the  same  as  those  prescribed  for  placers. ^^ 

Iron  is  not  named  in  the  act  of  1872,  nor  in  the  cor- 
responding section  of  the  Revised  Statutes.  Prior  to 
the  passage  of  that  act,  lands  containing  it  were  sold 
the  same  as  agricultural  lands.  That  act,  as  inter- 
preted by  the  land  dejDartment,  was  comprehensive 
enough  to  include  iron  ore,  and  thenceforth  lands  con- 

23  For  a  discussion  of  the  term  "other  valuable  deposits"  and  the 
application  of  the  doctrine  ejusdem  generis,  see  Nephi  Plaster  Co.  v. 
Juab  County,  33  Utah,  114,  93  Pac.  53,  54,  14  L.  R.  A.,  N.  S.,  1043; 
Webb  V.  American  Asphaltum  M.  Co.,  157  Fed.  203,  205,  84  C.  C.  A. 
651;  Utah  Onyx  Development  Co.,  38  L.  D.  504. 

2*  This  illustration  used  in  Nephi  Plaster  &  M.  Co.,  v.  Juab  County, 
33  Utah,  114,  93  Pac.  53,  54,  14  L.  R.  A.,  N.  S.,  1043. 

26  In  re  Stewart,  1  Copp's  L.  O.  34;  Commissioner's  Letter,  Copp's 
Min.  Dec.  235;  Henderson  v.  Fulton,  35  L.  D.  652;  In  re  McDonald, 
40  L.  D.  7. 


§  323  INTRODUCTORY.  740 

taining  siicli  substances  were  patented  only  under  the 
mining  laws.^^ 

The  large  number  of  nonmetallic  substances  men- 
tioned in  a  previous  chapter  of  this  work"  have  been 
held  by  the  land  department  to  fall  within  the  defi- 
nition of  "mineral"  and  "deposit,"  as  these  terms 
are  used  in  the  mining  statutes.  True,  in  the  cases 
wherein  this  rule  was  established  the  substances  oc- 
curred in  the  form  of  superficial  deposits.  But  if  it 
is  once  determined  that  they  are  "mineral"  or  "valu- 
able deposits,"  they  then  become  subject  to  classifica- 
tion for  the  purpose  of  appropriation  the  same  as  the 
metallic  substances  enumerated  in  the  act.^* 

The  supreme  court  of  Washington  at  one  time  held 
that  in  its  judgment  a  mining  claim,  either  placer  or 
lode,  could  not  lawfully  exist  or  be  patented  unless 
it  contained  some  of  the  metals,^^  a  ruling  which  it 
subsequently  retracted.^"  Secretary  of  the  Interior 
Hoke  Smith,  after  criticising  the  Washington  court 
for  its  first  decision,  ruled  as  follows : — 

It  appears  to  me  so  plain  that  congress  only  con- 
templated lands  that  were  valuable  for  the  more 
precious  metals  should  be  patented  as  lode  claims, 
that  it  needs  no  argument  to  convince  one  of  the 
proposition.^^ 

This  view  was  subsequently  overruled  in  so  far  as  it 
purported   to   limit   the   definition   of   "mineral"   to 

26  Commissioner's  Letter,  Copp's  Min.  Dec.  214. 

27  Ante,  §  97. 

28  Webb  V.  American  Asphaltum  Co.,  157  Fed.  203,  84  C.  C.  A.  651; 
Nephi  Plaster  Mfg.  Co.  v.  Juab  County,  33  Utah,  114,  93  Pac.  53,  54, 
14  L.  R.  A.,  N.  S.,  1043;  Utah  Onyx  Development  Co.,  38  L.  D.  504; 
Harry  Lode  M.  Claim,  41  L.  D.  403;  San  Francisco  Chemical  Co.  v.  Duf- 
field,  201  Fed.  830. 

29  Wheeler  v.  Smith,  5  Wash.  704,  32  Pac.  784. 

80  State  V.  Evans,  46  Wash.  219,  89  Pac.  565,  10  L.  R.  A.,  N.  S.,  1163. 

81  Wheeler  v.  Smith,  23  L.  D.  395,  399. 


741     METALLIC  OR  NONMETALLIC  CHARACTER  OF  DEPOSITS.      §  323 

motallic  substances  or  the  ''more  precious  metals," 
and  the  rule  adopted  that  the  term  ''mineral"  in- 
cludes all  classes  of  deposit,  whether  metallic  or  non- 
metallic.^^ 

Commissioner  McFarland  expressed  the  opinion 
that  veins  of  clay  or  nonmotalliferous  substances  were 
not  subject  to  location  as  lodes,  but  might  be  entered 
as  placers.^' 

At  a  time  when  the  department  entertained  the  view 
that  salt  deposits  were  subject  to  location  under  the 
mining  laws  a  ruling  was  made  to  the  effect  that  when 
a  deposit  of  rock  salt  was  found  in  an  inclined  posi- 
tion in  the  mass  of  the  mountain  in  the  form  of  a 
ledge,  it  was  subject  to  location  under  the  lode  laws.^* 

It  is  unnecessary  for  us  to  here  reiterate  the  con- 
clusions heretofore  reached  by  us^°  as  to  what  is  meant 
by  the  terms  "mineral  land"  and  "valuable  de- 
posits," as  these  terms  are  used  in  the  mining  laws. 
We  think  those  conclusions  were  based  upon  the 
weight  of  authority.  If  they  are  correct,  it  follows 
that  land  containing  any  substance,  metallic  or  non- 
metallic,  which  possesses  economic  value  for  use  in 
trade,  manufacture,  the  sciences,  or  in  the  mechanical 
or  ornamental  arts,  if  such  substance  exists  therein  in 
veins  or  lodes  of  rock  in  'place  in  sufficient  quantities 
to  render  the  land  more  valuable  for  the  purpose  of 
removing  and  marketing  the  product  than  for  any 

32  Pacific  Coast  Marble  Co.  v.  Northern  Pacific  R.  R.  Co.,  25  L.  D. 
233.  To  same  effect,  Northern  Pacific  R.  R.  Co.  v.  Soderberg,  99  Fed. 
506,  507,  104  Fed.  425,  427,  43  C.  C.  A.  620;  S.  C,  188  U.  S.  526,  23 
Sup.  Ct.  Rep.  365,  47  L.  ed.  575;  State  v,  Evans,  46  Wash.  219,  89  Pae. 
565,  10  L.  R.  A.,  N.  S.,  1163. 

83  Montague  v.  Dobbs,  9  Copp's  L.  O.  165. 

34  In  re  Megarrigle,  9  Copp's  L.  O.  113;  post,  §  515. 

38  Ante,  §  98. 


§327 


THE   LOCATION   AND   ITS   REQUIREMENTS. 


742 


other  purpose,  such  land  must  be  appropriated  under 
the  laws  applicable  to  lodes. 

This  we  understand  to  be  the  rule  now  recognized 
by  the  courts  and  the  land  department  as  announced 
in  the  cases  heretofore  cited.^* 


Article  II.  The  Location  and  Its  Requirements. 


I  327.  "Location"  and  "mining 
claim"  defined. 

§  328.  Acts  necessary  to  consti- 
tute a  valid  lode  location 
under  the  Eevised  Stat- 
utes, in  the  absence  of 
supplemental  state  legis- 
lation and  local  district 
rules. 


329. 


330. 


§  331. 
§  332. 


The  requisites  of  a  valid 
lode  location  where  sup- 
plemental state  legisla- 
tion exists. 

Order  in  which  acts  are 
performed  immaterial ; 
time,  when  nonessential. 

Locations  made  by  agents. 

Placer  locations  by  power 
of  attorney  in  Alaska. 


§  327.  "Location"  and  "mining  claim"  defined. — 
"Location"  and  "mining  claim"  may  not  always  or 
necessarily  mean  the  same  thing.  The  supreme  court 
of  the  United  States  has  said  that  a  mining  claim  is 
a  parcel  of  land  containing  precious  metal  in  its  soil 
or  rock." 

A  location  is  the  act  of  appropriating  such  parcel 
according  to  certain  established  rules.  The  "loca- 
tion" in  time  became  among  the  miners  synonymous 
with  the  "mining  claim"  originally  appropriated.  If 
the  miner  has  only  the  ground  covered  by  one  location, 

36  The  rule,  however,  does  not  apply  to  rock  salt  occurring  in  veins. 
See  post,  §  513. 

37  St.  Louis  Smelting  Co.  v.  Kemp,  104  U.  S.  636,  648,  26  L.  ed. 
875.  The  use  of  the  term  "precious  metal"  in  this  connection  is  mani- 
festly of  no  controlling  importance.  The  Revised  Statutes  enumerate 
a  number  of  metals  which  are  in  no  sense  "precious,"  and,  as  such 
statutes  are  interpreted,  they  include  a  great  variety  of  substances  which 
are  not  metallic. 


743         "location"  and  "mining  claim"  defined.       §327 

his  ''mining  claim"  and  his  ''location"  are  identical, 
and  the  two  designations  may  be  indiscriminately  used 
to  denote  the  same  thing.  But  if  by  purchase  he  ac- 
quires other  adjoining  "locations,"  and  adds  them  to 
his  own,  then  the  term  "mining  claim"  is  frequently 
used  colloquially  to  describe  the  ground  embraced  by 
all  the  locations. ^^ 

Judge  Hillyer  defined  a  "mining  claim"  to  be  that 
portion  of  the  public  mineral  lands  which  the  miner  for 
mining  purposes  takes  up  and  holds  in  accordance 
with  the  mining  laws.^® 

As  generally  or  colloquially  used,  the  term  "mining 
claim"  has  no  reference  to  the  different  stages  in  the 
acquisition  of  the  government  title.  It  may  include  all 
mines  contiguous  to  each  other  and  held  under  one 
ownership,  whether  patented  or  unpatented,  if  ac- 
quired under  the  mining  laws,*°  or  which  is  claimed 
under  the  mining  laws,  although  the  location  may  not 
as  yet  have  been  perfected;  e.  g.,  oil  placer  in  process 
of  development." 

Strictly  speaking,  "location"  is  the  act  or  series  of 
acts  by  which  the  right  of  exclusive  possession  of  min- 
eral veins  and  the  surface  of  mineral  lands  is  vested  in 
the  locators." 

38  St.  Louis  Smelting  Co.  v.  Kemp,  104  U.  S.  636,  648,  26  L,  ed. 
875,  11  Morr.  Min.  Eep.  673 ;  McFetcrs  v.  Pierson,  15  Colo.  201,  22  Am. 
St.  Eep.  388,  24  Pac.  1076.  See,  also,  N.  P.  E.  E.  Co.  v.  Sanders,  49 
Fed.  129,  135,  1  C.  C.  A.  192;  In  re  Mackie,  5  L.  D.  199. 

39  Mt.  Diablo  M.  &  M.  Co.  v.  Callison,  5  Saw.  439,  Fed.  Cas.  No.  9886, 
0  Morr.  Min.  Kep.  616. 

<o  Bewick  v.  Muir,  83  Cal.  368,  372,  23  Pac.  389,  390. 

<i  Berentz  v.  Belmont  Oil  Co.,  148  Cal.  577,  113  Am.  St.  E«p.  308,  84 
Pac.  47,  48.  See,  also,  Uinta  T.  M.  &  T.  Co.  v.  Ajax  G.  M.  Co.,  141 
Fed.  563,  73  C.  C.  A.  35. 

*2  Creede  &  Cripple  Creek  M.  &  M.  Co.  v.  Uinta  M.  T.  Co.,  196  U.  S. 
337,  346,  25  Sup.  Ct.  Rep.  266,  49  L.  ed.  501. 


§  327  THE  LOCATION   AND   ITS   REQUIREMENTS.  744 

Where  these  terms  are  used  in  statutes,  federal  or 
state,  their  true  meaning  is  to  be  determined  from  a 
consideration  of  the  entire  context,  which  involves,  of 
course,  the  general  scope  and  character  of  the  legisla- 
tion. A  few  illustrations  from  the  adjudicated  cases 
will  serve  to  demonstrate  this. 

As  was  said  by  the  supreme  court  of  the  United 
States, — 

That  which  is  located  is  called  in  section  twenty- 
three  hundred  and  twenty  of  the  Revised  Statutes 
and  elsewhere  a  ''claim,"  or  "mining  claim."  In- 
deed, the  words  "claim"  and  "location"  are  used 
interchangeably." 

As  used  in  section  twenty-three  hundred  and  twenty- 
four  of  the  Revised  Statutes,  requiring  a  certain 
amount  of  work  to  be  done  annually  upon  "each 
claim,"  and  in  section  twenty-three  hundred  and 
twenty-five  prescribing  the  amount  of  labor  or  im- 
provements required  as  a  condition  precedent  to  the 
issuance  of  a  patent,  the  word  "claim"  means  "loca- 
tion."" 

As  used  in  the  revenue  acts  of  the  different  states 
and  territories,  providing  for  the  taxation  or  exemp- 
tion from  taxation  of  property,  the  term  "mining 
claim"  does  not  include  patented  mines.*® 

"Location"  is  the  inception  of  the  miner's  title. 

A  statute  of  California  provides  that  "every  person 
who  performs  labor  upon  any  'mining  claim'  has  a  lien 
upon  the  same."*® 

43  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  74, 
18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min,  Rep.  370. 

4*  Opinion  of  Assistant  Attorney-General  Van  Devanter,  27  L.  D. 
91.     Post,  §§  628,  673. 

45  Salisbury  v.  Lane,  7  Idaho,  370,  63  Pac.  383;  Waller  v.  Hughes, 
2  Ariz.  114,  11  Pac.  122. 

46  Cal.  Code  Civ.  Proc,  §§  1183,  1192. 


745         "location"  and  "mining  claim"  defined.       §  327 

In  constming  this  law,  the  supreme  court  of  that 
state  has  held  that  the  lien  extends  to  the  ivliole  claim" 
but  by  such  a  "claim"  was  meant  a  portion  of  the  pub- 
lic lands  to  which  the  right  of  enjoyment  has  been 
asserted  under  the  mining  laws;  that  a  Mexican  grant 
containing  eleven  hundred  and  nine  acres,  and  another 
three  hundred  and  fourteen  acres,  upon  which  mining 
was  conducted,  the  whole  being  known  as  the  Guad- 
alupe mine,  was  not  a  "mining  claim,"  and  no  lien 
could  be  filed  thereon  extending  over  the  entire  area." 

Nor  is  a  tract  of  one  hundred  and  sixty  acres  of  land, 
held  under  agricultural  patent,  upon  which  parties 
were  engaged  in  mining,  such  a  "claim"  as  is  lienable 
as  a  mining  claim." 

But  a  consolidation  of  numerous  mining  locations, 
held  and  operated  under  one  ownership,  the  aggrega- 
tion being  designated  by  a  general  name,  such  as  the 
"Red  Cloud  mine,"  is  a  "mining  claim,"  and  the 
whole  claim  is  lienable.^" 

As  a  mine  owner  may  perform  work  on  one  of  a 
group  of  claims  and  thus  hold  the  entire  group,  so 
should  a  lien  claimant  be  entitled  to  embrace  the  entire 
group  in  his  lien.^^ 

*7  Helm  V.  Chapman,  66  Cal.  291,  5  Pac.  352. 

*8  Williams  v.  Santa  Clara  Min.  Assn.,  66  Cal.  193,  5  Pac.  85;  U.  S. 
Min.  Dec.  136,  142;  Week's  Min.  Lands,  118.  As  to  definition  under 
the  lien  laws,  see  Escott  v.  Crescent  City  Coal  &  Navigation  Co.,  56 
Or.  190,  106  Pac.  452,  453,  where  all  the  cases  are  reviewed. 

"  Morse  v.  De  Ardo,  107  Cal.  622,  40  Pac.  1018. 

60  Tredinnick  v.  Bed  Cloud  M.  Co.,  72  Cal.  78,  84,  13  Pac.  152.  See, 
also,  Malone  v.  Big  Flat  G.  M.  Co.,  76  Cal.  583,  18  Pac.  772;  Hamilton 
v.  Delhi  M.  Co.,  118  Cal.  148,  50  Pac.  378;  Salt  Lake  Hardware  Co.  v. 
Chainman  M.  Co.,  137  Fed.  632,  642;  Phillips  v.  Salmon  Eiver  M.  & 
D.  Co.,  9  Idaho,  149,  72  Pac.  886;  Thompson  v.  Wise  Boy  M.  &  M.  Co., 
9  Idaho,  363,  74  Pac.  958;  Idaho  M.  &  M.  Co.  v.  Davis,  123  Fed.  396, 
399,  59  C.  C.  A.  200. 

61  Mclntyre  v.  Montana  Gold  Mt.  M.  Co.,  41  Mont.  87,  137  Am. 
St.  Rep.  701,  108  Pac.  353. 


§  328  THE   LOCATION   AND   ITS   REQUIREMENTS.  746 

While  the  law  prescribes  a  limitation  as  to  the  size  of 
a  location,  there  is  no  limitation  to  the  number  of  claims 
one  person  may  hold  by  purchase," 

A  single  location  is  a  "claim,"  as  that  term  is  used 
in  the  Eevised  Statutes.  But,  as  we  have  heretofore 
seen,  "claim"  may,  colloquially  speaking,  embrace  a 
number  of  locations. 

§  328,  Acts  necessary  to  constitute  a  valid  lode 
location  under  the  Revised  Statutes,  in  the  absence  of 
supplemental  state  legislation  and  local  district  rules. 

It  is  not  necessary  that  any  supplemental  state  legis- 
lation or  local  district  regulations  should  exist.  Where 
they  do  not  exist,  a  location  may  be  perfected  by  fol- 
lowing the  requirements  of  the  federal  law.  The  actsv 
to  be  performed  in  the  absence  of  state  or  district 
regulations  are  few  and  simple.  "The  intricacies  are 
those  found  by  the  courts  of  the  states  and  territories 
wherein  mineral  lands  are  situated  arising  out  of  com- 
plex state  or  territorial  legislation  supplementing  the 
federal  laws."" 

The  requisites  of  such  location  are: — 

(1)  The  discovery; 

(2)  The  marking  of  the  location  on  the  ground  so 
that  its  boundaries  can  be  readily  traced." 

52  St.  Louis  Smelting  Co.  v.  Kemp,  104  U.  S.  636,  648,  26  L.  ed.  875, 
11  Morr.  Min.  Rep.  673;  Malone  v.  Big  Flat  G.  M,  Co.,  76  Cal.  578, 
583,  18  Pac.  772. 

53  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037,  1039,  19  Morr.  Min. 
Rep.  650;  Upton  v.  Larkin,  7  Mont.  449,  17  Pac.  728,  730,  15  Morr. 
Min.  Rep.  404. 

64  Upton  V.  Larkin,  7  Mont.  449,  17  Pac.  728,  729,  15  Morr.  Min, 
Rep.  404;  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037,  1039,  19  Morr. 
Min.  Rep.  650;  Erwin  v.  Perego,  93  Fed.  608,  610,  35  C.  C.  A.  482; 
Treasury  Tunnel  M.  &  R.  Co.  v.  Boss,  32  Colo.  27,  105  Am.  St.  Rep. 
60,  74  Pac.  888,  889;  Daggett  v.  Yreka  M.  &  M.  Co.,  149  Cal.  357,  86 
Pac,  968,  969;  Walton  v.  Wild  Goose  M,  &  T.  Co,,  123  Fed,  209,  216, 


747  ACTS  NECESSARY  TO  CONSTITUTE  VALID  LODE  LOCATION.  §  328 

No  notice  need  be  posted"  or  recorded;"  no  partic- 
ular kind  of  marking  is  required  so  long  as  the 
''boundaries  may  be  readil)^  traced."  The  taking  and 
holding  of  actual  possession  is  wholly  unnecessan^, 
and  this  applies  to  all  classes  of  locations,  wherever 
made,  and  whether  state  legislation  or  local  rules  exist 
or  not,  assuming,  of  course,  that  all  the  acts  of  loca- 
tion are  complete,  including  discovery."  Actual  pos- 
session is  no  more  necessary  for  the  protection  of  title 
acquired  by  a  valid  mining  location  than  it  is  for  any 
other  grant  from  the  United  States.^^ 

60  C.  C.  A.  155,  22  Morr.  Min.  Eep.  688;  Creede  &  Cripple  Creek  M. 
&  M.  Co.  V.  Uinta  T.  M.  &  T.  Co.,  196  U.  S.  337,  346,  25  Sup.  Ct.  Rep. 
266,  49  L.  ed.  501;  McCleary  v.  Broaddus,  14  Cal.  App.  60,  111  Pac. 
125,  126. 

55  Post,  §  350;  Perigo  v.  Erwin,  85  Fed.  904,  906,  19  Morr.  Min.  Rep. 
269;  Harris  v.  Kellogg,  117  Cal.  484,  49  Pac.  708,  709;  Gwillim  v. 
Donnellan,  115  U.  S.  45,  48,  5  Sup.  Ct.  Rep.  1110,  29  L.  ed.  348,  15 
Morr.  Min.  Rep.  482;  McCarthy  v.  Speed,  11  S.  D.  362,  77  N.  W.  5C0, 
50  L.  R.  A.  184,  19  Morr.  Min.  Rep.  615;  Bramlett  v.  Flick,  23  Mont. 
95,  57  Pac.  869,  871,  20  Morr.  Min.  Rep.  103;  Dwinnell  v.  Dyer,  145 
Cal.  12,  78  Pac.  247,  253,  7  L.  E.  A.,  N.  S.,  763 ;  Anderson  v.  Caughey, 
3  Cal.  App.  22,  84  Pac.  223,  224;  Daggett  v.  Yreka  M.  &  M.  Co.,  149 
Cal.  357,  86  Pac.  968,  969;  Walton  v.  Wild  Goose  M.  &  T.  Co.,  123 
Fed.  209,  216,  60  C.  C.  A.  155,  22  Morr.  Min.  Rep.  688;  McCleary  v. 
Broaddus,  14  Cal.  App.  60,  111  Pac.  125,  127. 

56  Post,  §§  389-392;  Perigo  v.  Erwin,  85  Fed.  904,  906,  19  Morr.  Min. 
Eep.  269;  Magruder  v.  Oregon  &  Cal.  R.  R.  Co.,  28  L.  D.  174;  Dwin- 
nell V.  Dyer,  145  Cal.  12,  78  Pac.  247,  253,  7  L.  E.  A.,  N.  S.,  763; 
Anderson  v.  Caughey,  3  Cal.  App.  22,  84  Pac.  223,  224;  Daggett  v. 
Yreka  M.  &  M.  Co.,  149  Cal.  357,  86  Pac.  968,  969;  Ford  v.  Campbell, 
29  Nev.  578,  92  Pac.  206,  208;  Peters  v.  Tonopah  M.  Co.,  120  Fed.  587, 
589;  Walton  v.  Wild  Goose  M.  &  T.  Co.,  123  Fed.  209,  216,  60  C.  C.  A. 
155,  22  Morr.  Min.  R«p.  688;  Zerres  v.  Vanina,  134  Fed.  610,  617; 
S.  C,  in  error,  150  Fed.  564,  80  C.  C.  A.  366;  Sturtevant  v.  Vogel,  167 
Fed.  448,  450,  93  C.  C.  A.  84;  McCleary  v.  Broaddus,  14  Cal.  App.  60, 

111  Pac.  125,  127. 

57  McLemore  v.  Express  Oil  Co.,  158  Cal.  559,  139  Am.  St.  Rep.  147, 

112  Pac.  59. 

58  Belk  V.  Meagher,  104  U.  S.  279,  283,  26  L.  ed.  735,  1  Morr.  Min. 
Rep.  510;  Harris  v.  Kellogg,  117  Cal.  484,  49  Pac.  708,  709;  Gwillim 
V.  Donnellan,  115  U.  S.  45,  48,  5  Sup,  Ct.  Eep.  1110,  29  L.  ed.  348,  15 


§  329  THE  LOCATION   AND   ITS   REQUIREMENTS.  748 

Such  a  discovery  having  been  made  as  will  satisfy 
the  law,^®  the  marking  of  the  location  on  the  ground 
including  the  place  of  his  discovery  completes  the  loca- 
tion and  clothes  the  locator  with  the  complete  posses- 
sory title.  No  development  or  discovery  work  is  re- 
quired. In  fact,  no  labor  need  be  performed  nor  im- 
provements made  until  within  the  year  commencing 
on  the  first  day  of  January  succeeding  the  date  of  the 
location.^" 

§  329.  The  requisites  of  a  valid  lode  location  under 
the  Revised  Statutes  where  supplemental  state  legisla- 
tion exists. — Practically  all  of  the  precious  metal-bear- 
ing states  have  availed  themselves  of  the  privilege  of 
supplementing  federal  legislation,  and  have  adopted  s 
systems  more  or  less  comprehensive.  We  have  here- 
tofore given  an  outline  of  the  general  scope  and  char- 
acter of  this  legislation,^^  from  which  it  will  be  readily 
observed  that  in  some  of  the  states  certain  require- 
ments exist  which  are  not  found  in  others.  Where 
state  laws  or  local  regulations  exist  which  are  not  re- 
pugnant to  the  federal  statutes,  compliance  with  such 
supplemental  law  is  requisite  to  the  validity  of  a  loca- 
tion." 

Morr.  Min.  Rep.  482;  McCarthy  v.  Speed,  11  S.  D.  362,  77  N.  W.  590, 
50  L.  R.  A.  184,  19  Morr.  Min.  Rep.  615;  Bramlett  v.  Flick,  23  Mont. 
95,  57  Pac.  869,  872,  20  Morr.  Min.  Rep.  103;  Gear  v.  Ford,  4  Cal. 
App.  556,  88  Pac.  600,  602;  Holdt  v.  Hazard,  10  Cal.  App.  440,  102 
Pac.  540;  McCulloch  v.  Murphy,  125  Fed.  147,  150. 
09  Post,  §  336. 

60  Amend,  to  §  2324,  Rev.  Stats.,  Jan.  22,  1880,  21  Stats,  at  Large, 
61;  Comp.  Stats.  1901,  p.  1426;  5  Fed.  Stats.  Ann.  19.  An  exception  to 
this  rule  is  found  in  the  territory  of  Alaska,  where  by  act  of  congress 
passed  August  24,  1912,  the  first  year's  work  must  be  performed  during 
the  calendar  year  in  which  the  location  is  made.     Post,  §  332. 

61  Ante,  §§  248-252. 

62  Butte  City  Water  Co.  v.  Baker,  196  U.  S.  119,  121,  25  Sup.  Ct. 
Rep.  211,  49  L.  ed.  409;   affirming  Baker  v.  Butte  City  Water  Co.,  28 


749      WHERE  SUPPLEMENTAL  STATE  LEGISLATION  EXISTS.      §  329 

As  state  laws  form  an  important  element  of  the  fed- 
eral system  in  their  respective  jurisdictions,  it  is  neces- 
sary to  a  satisfactory  presentation  of  the  subject  under 
consideration  to  give  them  their  proper  place,  dis- 
tributed under  the  several  appropriate  heads.  We 
think  the  object  may  be  intelligently  accomplished  by 
selecting  as  a  type  of  such  state  legislation  the  local 
code  which  is  the  most  comprehensive,  and  note  the 
differences  between  that  code  and  the  existing  laws  of 
other  states  and  territories.  In  this  way  we  shall  be 
enabled  to  present,  under  appropriate  subdivisions  ap- 
proaching methodical  arrangement,  the  rule  in  each 
state  or  territory  touching  the  subject  immediately 
under  consideration,  in  connection  with  the  treatment 
of  the  requirements  of  the  congressional  laws.  For 
this  purpose  we  select  the  state  of  Colorado,  and  will 
divide  our  subject,  for  purpose  of  treatment,  on  the 
basis  of  the  Colorado  mining  laws,  noting  wherein  the 
requirements  of  other  states  are  similar  or  are  dif- 
ferent. 

Under  the  laws  of  Colorado  the  following  acts  are 
required  to  complete  a  valid  lode  location: — 

(1)  The  discovery; 

(2)  The  sinking  of  a  discovery  shaft  of  certain  pre- 
scribed dimensions,  or  its  equivalent; 

(3)  The  posting  of  a  notice; 

(4)  The  marking  of  surface  boundaries  in  a  certain 
specified  manner; 

Mont.  222,  104  Am.  St.  Eep.  683,  72  Pac.  617;  Hahn  v.  James,  29  Mont. 
1,  73  Pae.  965,  966;  Wright  v.  Lyons,  45  Or.  167,  77  Pac.  81;  Sharkey 
V.  Candiani,  48  Or.  112,  85  Pac.  219,  222,  7  L.  R.  A.,  N.  S.,  791;  Purdum 
V.  Ladin,  23  Mont.  387,  59  Pac.  153,  154;  Belk  v.  Meagher,  104  Fed.  284, 
26  L.  ed.  735,  1  Morr.  Min.  Hep.  510;  Garfield  M.  Co.  T.  Hammer,  6 
Mont.  53,  8  Pac.  153,  155. 


§  329  THE  LOCATION   AND   ITS   REQUIREMENTS.  750 

(5)  The  making  of  a  location  certificate; 

(6)  The  recording  of  such  certificate.®^ 

A  substantial  compliance  with  the  requirements  6f 
the  laws,  federal  and  state,  as  well  as  local  rules,  where 
they  exist  and  are  not  repugnant  to  state  or  federal 
legislation,  is  a  condition  precedent  to  the  completion 
of  a  valid  location." 

In  some  states  this  rule  is  somewhat  modified  as  to 
certain  of  the  acts  in  the  series.  For  example,  in 
Nevada  it  has  been  held  that  a  failure  to  record  a  loca- 
tion notice  does  not  invalidate  the  location.*'' 

«3  Strepey  v.  Stark,  7  Colo.  614,  5  Pae.  Ill,  17  Morr.  Min.  Eep.  28. 
For  a  statement  of  Colorado  requirements,  see  Creede  &  Cripple  Creek 
M.  &  M.  Co.  V.  Uinta  T.  M.  &  T.  Co.,  196  U.  S.  337,  347,  25  Sup.  Ct. 
Eep.  266,  49  L.  ed.  5t)l. 

64  Belk  V.  Meagher,  104  U.  S.  279,  284,  26  L.  ed.  735,  1  Morr.  Min. 
Eep.  510;  Upton  v.  Larkin,  5  Mont.  600,  6  Pac.  66,  68;  Garfield  M.  & 
M.  Co.  V.  Hammer,  6  Mont.  53,  8  Pac.  153,  155;  Strepey  v.  Stark,  7 
Colo.  614,  5  Pac.  Ill,  114,  17  Morr.  Min.  Eep.  28;  McKinstry  v.  Clark, 
4  Mont.  370,  395,  1  Pac.  759,  762;  Noyes  v.  Black,  4  Mont.  527,  2 
Pac.  769;  Gleeson  v.  Martin  White  M.  Co.,  13  Nev.  443;  Sweet  v. 
Webber,  7  Colo.  443,  4  Pac.  752,  754;  Lalande  v.  McDonald,  2  Idaho, 
283  (307),  13  Pac.  347,  349;  Lockhart  v.  Wills,  9  N.  M.  344,  54  Pac. 
336,  339,  19  Morr.  Min.  Eep.  497;  KendaU  v.  San  Juan  M.  Co.,  144 
U.  S.  658,  664,  12  Sup.  Ct.  Eep.  779,  36  L.  ed.  583,  17  Morr.  Min.  Eep. 
475;  Nevada  Sierra  Oil  Co.  v.  Home  Oil  Co.,  98  Fed.  673,  678,  20  Morr. 
Min.  Eep.  283;  Copper  Globe  M.  Co.  v.  Allman,  23  Utah,  410,  64  Pac. 
1019,  1021,  21  Morr.  Min.  Eep.  296;  Purdum  v.  Laddin,  23  Mont.  387, 
59  Pac.  153,  154;  Baker  v.  Butte  City  Water  Co.,  28  Mont.  222,  104 
Am.  St.  Eep.  683,  72  Pac.  617,  618;  affirmed,  196  U.  S.  119,  121,  25 
Sup.  Ct.  Eep.  211,  49  L.  ed,  409;  Hahn  v.  James,  29  Mont.  1,  73  Pac. 
965,  966;  Mares  v.  Dillon,  30  Mont.  117,  75  Pac.  963,  964;  Dolan  v. 
Passmore,  34  Mont.  277,  85  Pac.  1034,  1035;  Helena  Gold  &  Iron  Co. 
V,  Baggeley,  34  Mont.  464,  87  Pae.  455,  459;  Butte  Northern  Copper 
Co.  V.  Eadmilovich,  39  Mont.  157,  101  Pac.  1078,  1079;  Ferres  v.  Me- 
Nally  (Mont.),  121  Pac.  889,  892. 

65  Ford  V.  Campbell,  29  Nev.  578,  92  Pac.  206,  208;  Zerres  v.  Vanina, 
134  Fed.  610,  618;  Warles  v.  Davies,  158  Fed.  667,  668;  S.  C,  on  appeal, 
164  Fed.  397,  90  C.  C.  A.  385. 


751  SEQUENCE    OP    LOCATION    ACTS    IMMATERIAL.  §  330 

The  relaxation  of  the  general  rule,  as  above  stated, 
however,  is  comparatively  rare,  and  the  requirements 
of  the  state  laws  are  usually  held  to  be  mandatoiy. 

Mere  possession  without  complying  with  the  law 
confers  no  rights." 

For  the  purpose  of  applying  the  doctrine  of  relation 
after  patent  issues,  the  date  of  performing  the  last  act 
in  the  series  of  acts  required  to  be  performed  is  the 
date  to  which  the  patent  relates.®^ 

In  the  nature  of  things,  we  cannot  deal  with  local 
district  regulations  in  detail.  We  have  heretofore  out- 
lined our  views  as  to  their  legitimate  scope  and  the 
extent  to  which  they  may  be  operative.®^  Where 
they  exist  and  are  in  harmony  with  state  and  fed- 
eral legislation,  they  are  to  be  considered  and  con- 
strued in  the  light  of  the  general  principles,  which  will 
be  enunciated  in  reference  to  state  legislation  in  the 
succeeding  articles. 

§  330.  Order  in  which  acts  are  performed  immate- 
rial— Time,  when  nonessential. — Generally  speaking, 
under  the  laws  of  congress  as  well  as  under  state  laws 
and  local  rules  the  natural  and  proper  order  of  pro- 
cedure to  complete  a  location  are  (1)  discovery,  (2) 

66  ^nte,  §§216-219;  Horswell  v.  Ruiz,  67  Cal.  Ill,  7  Pac.  197,  15 
Morr.  Min.  Eep.  488;  Morenhaut  v.  Wilson,  52  Cal.  263;  Chapman  v. 
Toy  Long,  4  Saw.  28,  Fed.  Cas.  No.  2610,  1  Morr.  Min.  Rep.  497;  Belk 
V.  Meagher,  104  U.  S.  279,  284,  26  L.  ed.  735,  1  Morr.  Min.  Rep.  510; 
Jordan  v.  Duke,  4  Ariz.  278,  36  Pac.  896,  897;  Creeds  &  Cripple  Creek 
M.  &  M.  Co.  V.  Uinta  T.  M.  &  T.  Co.,  196  U.  S.  337,  346,  25  Sup.  Ct. 
Kep.  266,  49  L.  ed.  501.  A  possible  exception  to  this  rule  is  found  in 
the  decisions  of  the  Califdrnia  courts  discussed  in  a  previous  section 
(§218),  protecting  possession  of  oil  locators  while  they  are  actually 
engaged  in  boring  for  oil  prior  to  discovery. 

67  Hickey  v.  Anaconda  Copper  M.  Co.,  33  Mont.  46,  81  Pac.  806,  811. 
As  to  doctrine  of  relation  generally,  see  post,  §  783. 

68  Ante,  §§  268-275. 


§  330  THE   LOCATION   AND   ITS   REQUIREMENTS.  752 

posting  notice,  (3)  recording  notice,  (4)  marking 
boundaries,  (5)  development  work;®®  but  the  order  in 
wbich  tlie  several  acts  required  by  law  are  to  be  per- 
formed is  nonessential,  in  the  absence  of  intervening 
rights/" 

The  marking  of  the  boundaries  may  precede  the  dis- 
covery, or  the  discovery  may  precede  the  marking;  and 
if  both  are  completed  before  the  rights  of  others  inter- 
vene, the  earlier  act  will  inure  to  the  benefit  of  the 
locator." 

69  Dwinnell  v.  Dyer,  145  Cal.  12,  21,  78  Pae.  247,  253,  7  L.  R.  A.,  N.  S., 
763. 

70  Golden  Terra  v.  Mahler,  4  Morr.  Min.  Rep.  390,  4  Pac.  C.  L.  J. 
405;  Thompson  v.  Spray,  72  Cal.  528,  14  Pac.  182,  185;  Gregory  v.  Persh- 
baker,  73  Cal.  109,  14  Pac.  401,  404,  15  Morr.  Min.  Rep.  602;  Perigo  v. 
Erwin,  85  Fed.  904,  905,  19  Morr.  Min.  Rep.  269;   Erwin  v.  Perigo,  93' 
Fed.  608,  610,  35  C.  C.  A.  482;  Jupiter  M.  Co.  v.  Bodie  Cona.  M.  Co., 

II  Fed.  666,  676,  7  Saw.  96,  4  Morr.  Min.  Rep.  411;  North  Noonday  M. 
Co.  V.  Orient  M.  Co.,  1  Fed.  522,  531,  6  Saw.  299,  9  Morr.  Min.  Rep.  529; 
Creede  &  Cripple  Creek  M.  &  M.  Co.  v.  Uinta  T.  M.  &  M.  Co.,  196  U.  S. 
337,  348,  25  Sup.  Ct.  Rep.  266,  49  L.  ed.  501;  Dwinnell  v.  Dyer,  145  Cal. 
12,  21,  78  Pac.  247,  253,  7  L.  R.  A.,  N.  S.,  763;  Green  v.  Gavin,  10  Cal. 
App.  330,  101  Pac.  931,  932;  McCleary  v.  Broaddus,  ]4  Cal.  App.  60, 

III  Pac.  125,  126;  La  Grande  Investment  Co.  v.  Shaw,  44  Or.  416,  72 
Pac.  795,  796,  74  Pac.  919;  Miller  v.  Chrisman,  140  Cal.  440,  98  Am, 
St.  R€p.  63,  73  Pac.  1083,  1084,  74  Pac.  444;  S.  C,  in  error,  197  U.  S. 
313,  25  Sup.  Ct.  Rep.  468,  49  L.  ed.  770;  Treasury  Tunnel  M.  &  R.  Co. 
v.  Boss,  32  Colo.  27,  105  Am.  St.  Rep.  60,  74  Pac.  888,  890;  Weed  v. 
Snook,  144  Cal.  439,  77  Pac.  1023,  1025;  Sharkey  t.  Candiani,  48  Or. 
112,  85  Pac.  219,  223,  7  L.  R.  A.,  N.  S.,  791;  New  England  &  Coalinga 
Oil  Co.  V.  Congdon,  152  Cal.  211,  92  Pae.  180,  181;  Merced  Oil  Co.  v. 
Patterson,  153  Cal.  624,  96  Pac.  90;  Ford  v.  Campbell,  29  Nev.  578,  92 
Pac,  206;  Walton  v.  Wild  Goose  M.  &  T.  Co.,  123  Fed.  209,  217,  60 
C,  C,  A,  155,  22  Morr.  Min.  Rep,  688;  Dean  v,  Omaha- Wyoming  Oil  Co. 
(Wyo.),  128  Pac.  881,  883. 

71  Erwin  v.  Perigo,  93  Fed.  608,  610,  35  C.  C,  A,  482;  Cosmos  Eiplorm- 
tion  Co.  v.  Gray  Eagle  Oil  Co.,  112  Fed.  4,  14,  50  C.  C.  A.  79,  21  Morr. 
Min.  Rep.  633;  Reins  v.  Raunheim,  28  L.  D.  526;  Olive  Land  &  D.  Co. 
V.  Olmstead,  103  Fed.  568,  578,  20  Morr.  Min.  Rep.  700;  Beals  v.  Cone, 
27  Colo.  473,  83  Am.  St.  Rep.  92,  62  Pac.  948,  952,  20  Morr.  Min.  Rep. 
591;  Brewster  v.  Shoemaker,  28  Colo.  176,  89  Am.  St.  Rep.  188,  63  Pac. 


753  SEQUENCE    OF    LOCATION    ACTS    IMMATERIAL.  §  330 

But  if  the  boundaries  are  marked  before  discovery, 
the  location  will  date  from  the  time  discovery  is 
made." 

The  supreme  court  of  Colorado  has  thus  expressed 
the  rule:  — 

The  validity  of  the  location  of  a  mining  claim  is 
made  to  depend  primarily  upon  the  discovery  of  a 
vein  or  lode  within  its  limits.  Section  2320,  Rev. 
Stats.,  U.  S.  Until  such  discovery,  no  rights  are 
acquired  by  location.     The  other  requisites  which 

309,  310,  53  L.  R.  A.  793,  21  Morr.  Min.  Eep.  155;  Cedar  Canyon  Cons. 
M.  Co.  V.  Yarwood,  27  Wash.  271,  91  Am.  St.  Rep.  841,  67  Pac.  749,  752, 
22  Morr.  Min.  Rep.  11;  Miller  v.  Chrisman,  140  Cal.  440,  98  Am.  St.  Rep. 
63,  73  Pac.  1083,  1084,  74  Pac.  444;  Treasury  Tunnel  M.  &  R.  Co.  v. 
Boss,  32  Colo.  27,  105  Am.  St.  Rep.  60,  74  Pac.  888,  890;  Field  v.  Tanner, 
32  Colo.  278,  75  Pac.  916,  917;  Dwinnell  v.  Dyer,  145  Cal.  12,  78  Pac. 
247,  253,  7  L.  R.  A.,  N.  S.,  763;  Sharkey  v.  Candiani,  48  Or.  112,  85  Pac. 
219,  223,  7  L.  R.  A.,  N.  S.,  791;  Healey  v.  Rupp,  37  Colo.  25,  86  Pac.  1015, 
1016;  Butte  Consol.  M.  Co.  v.  Barker,  35  Mont.  327,  89  Pac.  302,  304, 
90  Pac.  177;  Whiting  v.  Straup,  17  Wyo.  1,  129  Am.  St.  Rep.  1093,  95 
Pac.  849,  854;  Phillips  v.  Brill,  17  Wyo.  26,  95  Pac.  856,  858;  Merced  Oil 
Co.  V.  Patterson,  153  Cal.  624,  96  Pac.  90,  91;  S.  C,  second  appeal  (Cal., 
March  22,  1912),  122  Pac.  950,  952. 

72  Text  quoted  with  approval  in  Creede  &  Cripple  Creek  M.  &  M. 
Co.  V.  Uinta  T.  M.  &  M.  Co.,  196  U.  S.  334,  348,  25  Sup.  Ct.  Rep. 
266,  49  L.  ed.  501,  and  is  further  supported  by  the  following  cases: 
Beals   V.    Cone,   27    Colo.   473,   83    Am.    St.   Rep.   92,  62    Pac.   948,   952, 

20  Morr.  Min.  Rep.  591;  Brewster  v.  Shoemaker,  28  Colo.  176,  89  Am. 
St.  Rep.  188,  63  Pac.  309,  310,  53  L.  R.  A.  793,  21  Morr.  Min. 
Eep.  155;   Tuolumne  G.  M.  Co.  t.   Maier,  134  Cal.   583,  66  Pac.   863, 

21  Morr.  Min.  Rep.  678;  Erwin  v.  Perigo,  93  Fed.  608,  610,  35  C. 
C.  A.  482;  Cosmos  Exploration  Co.  v.  Gray  Eagle  Oil  Co.,  112  Fed.  4, 
14,  50  C.  C.  A.  79,  21  Morr.  Min.  Rep.  633;  Jupiter  M.  Co.  v.  Bodie 
Cons.  M.  Co.,  11  Fed.  666,  676,  7  Saw.  96,  4  Morr.  Min.  Rep.  411;  Reins 
V.  Raunheim,  28  L.  D.  526;  North  Noonday  M.  Co.  v.  Orient  M.  Co.,  1 
Fed.  522,  531,  6  Saw.  299,  9  Morr.  Min.  Rep.  529;  Nevada  Sierra  Oil 
Co,  V.  Home  Oil  Co.,  98  Fed.  673,  677,  20  Morr.  Min.  Rep.  283 ;  Johanson 
V.  White,  160  Fed.  901,  903;  Waskey  v.  Hammer,  170  Fed.  31,  35,  95 
C.  C.  A.  305;  affirmed,  223  U.  S.  85,  32  Sup.  Ct.  Rep.  187,  56  L.  ed.  359; 
Hall  V.  McKinnon,  193  Fed.  572,  577;  Hanson  v.  Craig,  170  Fed.  62,  64, 
95  C.  C.  A.  338. 

Lindley  on  M. —  48 


§  330  THE  LOCATION   AND   ITS   REQUIREMENTS.  754 

must  be  observed  in  order  to  perfect  and  keep  alive 
a  valid  location  are  not  imperative,  except  as  against 
the  rights  of  third  persons.  If  the  necessary  steps 
outside  of  discovery  are  not  taken  within  the  time 
required  by  law,  but  are  complied  with  before  the 
rights  of  third  i)arties  intervene,  they  relate  back  to 
the  date  of  location.  But  not  so  with  discoverj^,  for 
it  is  upon  that  act  that  the  very  life  of  a  mineral 
location  depends;  and  from  the  time  of  such  dis- 
covery only  would  the  location  be  valid,  provided,  of 
course,  that  others  had  not  acquired  rights  therein.''^ 

The  case  of  Erwin  v.  Perigo^*  involved  a  mining 
claim  on  which  a  discovery  was  not  made  until  after 
the  marking  of  the  boundaries.     The  court  said : — 

The  marking  of  the  boundaries  of  the  claim  may 
precede  the  discovery,  or  the  discovery  may  precede 
the  marking;  and  if  both  are  completed  before  the 
rights  of  others  intervene,  the  earlier  act  will  inure 
to  the  benefit  of  the  locator  as  of  the  date  of  the 
later,  and  a  complete  possessory  title  to  the  premises 
will  vest  in  him  as  of  the  later  date. 

This  language  is  undoubtedly  correct  as  applied  to 
the  facts  under  discussion  by  the  court.  But  it  may  be 
questioned  whether  the  statement  is  correct  as  applied 
to  a  case  where  the  marking  occurs  subsequent  to  the 
discovery.  In  such  a  case  we  think,  in  the  absence  of 
a  state  statute  fixing  a  definite  time,  a  discoverer  of 
mineral  has  a  reasonable  time  within  which  to  mark 
his  boundaries,^^  and  if  he  complete  the  marking  within 
a  reasonable  time,  his  title  will  date  from  the  time  of 
discovery.  It  has  frequently  been  held  that  discovery 
IS  the  source  of  a  miner's  title. ^® 

73  Beals  V.  Cone,  27  Colo.  473,  83  Am.  St.  Rep.  92,  62  Pac.  498,  952, 
20  Morr.  Min.  Rep.  591;  Healey  v.  Rupp,  37  Colo.  25,  86  Pac,  1015,  1016. 

74  93  Fed.  608,  611,  35  C.  C.  A.  482. 
78  Post,  §  339. 

76  Post,  §  335.  Where  the  doctrine  of  relation  is  invoked  after  patent 
issues,  the  supreme  court  of  Montana  holds  that  the  time  to  which  the 


755  SEQUENCE    OF    LOCATION    ACTS    IMMATERIAL.  §  330 

The  failure  to  perform  any  of  the  given  acts  within 
the  time  limited  by  the  laws  or  local  rules  may  subject 
the  ground  to  relocation;  but  if  the  requirements  are 
complied  with  prior  to  the  acquisition  of  any  interven- 
ing rights,  no  one  has  a  right  to  complain.  Of  course, 
the  locator  delays  at  his  peril;"  but  if  the  appropria- 
tion becomes  complete  before  anyone  else  initiates  a 
right,  the  antecedent  delay  is  condoned,  and  the  right 
becomes  perfected.^*  But  unless  completed  within  the 
time  prescribed,  the  attempted  location  is  of  no  avail  as 
against  inten^ening  rights,"  assuming,  of  course,  that 

patent  relates  is  the  date  of  the  performance  of  the  last  act  in  the  series 
required  under  the  state  laws  to  perfect  a  location,  i.  e.,  the  filing  of  the 
certificate  for  record.  Hickey  v.  Anaconda  Copper  M.  Co.,  33  Mont.  46, 
81  Pac.  806,  811.  Brantly,  C.  J.,  concurring,  thinks  the  title  should  re- 
late to  the  date  of  discovery.  A  full  discussion  of  the  doctrine  of  rela- 
tion will  be  found  post,  in  §  783. 

77  Protective  M.  Co.  v.  Forest  City  M.  Co.,  51  Wash.  643,  99  Pac. 
1033,  1034. 

78  McGinnis  v.  Egbert,  8  Colo.  41,  5  Pac.  652,  655,  15  Morr.  Min.  Eep. 
329;  North  Noonday  M.  Co.  v.  Orient  M.  Co.,  6  Saw.  299,  314,  1  Fed. 
522,  531,  9  Morr.  Min.  Eep.  529;  Jupiter  M.  Co.  v.  Bodie  Cons.  M.  Co., 
7  Saw.  96,  115,  11  Fed.  666,  676,  4  Morr.  Min.  Eep.  411;  Omar  v. 
Soper,  11  Colo.  380,  7  Am.  St.  Eep.  246,  18  Pac.  443,  447,  15  Morr.  Min. 
Eep.  496;  McEvoy  v.  Hyman,  25  Fed.  596,  597,  15  Morr.  Min.  Eep. 
397;  Preston  v.  Hunter,  67  Fed.  996,  999,  15  C.  C.  A.  148;  Faxon  v. 
Barnard,  4  Fed.  702,  703,  2  MeCrary,  44,  9  Morr.  Min.  Eep.  515;  Strepey 
V.  Stark,  7  Colo.  614,  5  Pac.  Ill,  114,  17  Morr.  Min.  Eep.  28;  Craig  v. 
Thompson,  10  Colo.  517,  16  Pac.  24;  Lockhart  v.  Willis,  9  N.  M.  344, 
54  Pac.  336,  341,  19  Morr.  Min.  Eep.  497;  Crown  Point  G.  M.  Co.  v. 
Crismon,  39  Or.  364,  65  Pac.  87,  88,  21  Morr.  Min.  Eep.  406;  La  Grande 
Investment  Co.  v.  Shaw,  44  Or.  416,  72  Pac.  795,  796,  74  Pac.  919; 
Dwinnell  v.  Dyer,  145  Cal.  12,  78  Pac.  247,  250,  7  L.  E.  A.,  N.  S.,  763; 
Green  v.  Gavin,  10  Cal.  App.  330,  101  Pac.  931,  932 ;  Brockbank  v.  Albion 
M.  Co.,  29  Utah,  367,  81  Pac.  863. 

79  Pelican  &  Dives  M.  Co.  v.  Snodgrass,  9  Colo.  339,  12  Pac.  206,  20S; 
Hauswirth  v.  Butcher,  4  Mont.  299,  1  Pac.  714,  715;  Upton  v.  Larkin, 
5  Mont.  600,  6  Pac.  66,  67;  Copper  Globe  M.  Co.  v.  Allman,  23  Utah, 
410,  64  Pac.  1019,  1022,  21  Morr.  Min.  Eep.  296. 


§  331  THE   LOCATION   AND   ITS   REQUIREMENTS.  755 

the  subsequent  entry  for  the  purpose  of  location  is 
peaceable  and  in   good   faith.^° 

§  331.  Locations  made  by  agents. — Witb  tbe  excep- 
tion of  placer  claims  in  the  territory  of  Alaska,  with 
reference  to  which  recent  legislation  restricts  locations 
by  agents  and  attorneys  in  fact,  which  legislation  is  re- 
ferred to  in  the  succeeding  section,  there  is  nothing  in 
the  laws  of  congress  that  prohibits  one  from  initiating 
a  location  of  a  mining  claim  by  an  agent.^^ 

All  the  acts  of  location  required  to  be  performed,  in- 
cluding discovery,  may  be  done  by  any  agent  or  em- 
ployee of  the  locator,  or  by  any  person  in  his  behalf  and 
for  his  benefit.^^ 

As  the  title  comes  from  the  appropriation  made  in  ^ 
accordance  with  the  law,  and  as  it  is  not  necessary  that 
a  party  should  personally  act  in  taking  up  a  claim,  or 
in  doing  the  acts  required  to  give  evidence  of  the  ap- 
propriation, or  to  perfect  the  appropriation,  it  would 
seem,  at  least  in  the  absence  of  a  local  rule  or  statute 
to  the  contrary,  that  such  acts  are  valid  if  done  by  one 
for  another,  or  with  his  assent.®^ 

A  location  may  be  made  without  the  knowledge  of 
the  principal,  if  there  is  a  local  rule  authorizing  it; 
otherwise,  there  may  be  antecedent  authority  or  sub- 
sequent ratification.^* 

80  Ante,  §  219.  See  Miller  v.  airisman,  140  Cal.  440,  98  Am.  St.  Rep. 
63,  73  Pac.  1083,  1084,  74  Pac.  444,  and  Weed  v.  Snook,  144  Cal.  439, 
77  Pac.  1023,  1025,  where  the  supreme  court  of  California  protects  a 
locator  without  discovery  while  in  actual  possession  and  boring  for  oil. 

81  Schultz  V.  Keeler,  2  Idaho,  305  (333),  13  Pac.  481,  482. 

82  Charge  to  jury  in  Walton  v.  Wild  Goose  M.  &  T.  Co.,  123  Fed.  209, 
217,  60  C.  C.  A.  155,  22  Morr.  Min.  Eep.  688;  McCuUoch  v.  Murphy,  125 
Fed.  147,  149. 

«s  Gore  v.  McBrayer,  18  Cal.  582,  587. 

•*  Thompson  v.  Spray,  72  Cal.  528,  14  Pac.  182,  184;  Murley  v.  Ennis, 
2  Colo.  300;  Morton  v.  Solambo  C.  M.  Co.,  26  Cal.  527,  534;  Hirbour  v. 


757  LOCATIONS  MADE  BY  AGENTS.  §  331 

Such  authority  need  not  be  in  writing.^' 

A  party  in  whose  name  a  mining  claim  is  located  is 
presumed  to  have  assented  to  the  location,^®  upon  the 
principle  that  a  party  is  presumed  to  assent  to  a  deed 
or  other  act  manifestly  for  his  benefit.^^ 

One  of  several  colocators  of  a  mining  claim  may 
cause  a  notice  of  a  mining  claim  to  be  recorded  in  the 
name  of  himself  and  others  not  present,  and  the  loca- 
tion will  be  valid,®^  provided,  of  course,  that  the  names 
of  the  absentees  are  used  in  good  faith  and  not  as 
"dummies."^' 

When  a  location  is  made  by  one  in  the  name  of 
others,  the  persons  in  whose  names  it  is  made  become 
vested  with  the  legal  title  to  the  claim.^°  The  estate  so 
acquired  cannot  be  divested  by  making  a  second  loca- 
tion leaving  out  the  names  of  the  original  locators,  so 

Reeding,  3  Mont.  15;  Welland  v.  Huber,  8  Nev.  203;  Moritz  v.  Lavelle, 
77  Cal.  10,  11  Am.  St.  Rep.  229,  18  Pac.  803,  804,  16  Morr.  Min.  Rep. 
236;  Book  v.  Justice  M.  Co.,  58  Fed.  106,  118,  17  Morr.  Min.  Rep.  617; 
EeagaJi  v.  McKibben,  11  S.  D.  270,  76  N.  W.  943,  945,  19  Morr.  Min. 
Rep.  556;  Morrison  v.  Regan,  8  Idaho,  291,  67  Pac.  956,  22  Morr.  Min. 
Rep.  69;  Whiting  v.  Straup,  17  Wyo.  1,  129  Am.  St.  Rep.  1093,  95  Pac. 
849. 

86  Morrison  v.  Regan,  8  Idaho,  291,  67  Pac.  956,  960,  22  Morr.  Min. 
Rep.  69;  Reagan  v.  McKibben,  11  S.  D.  270,  76  N.  W.  943,  946,  19  Morr. 
Min.  Rep.  556;  Moritz  v.  Lavelle,  77  Cal.  10,  11  Am.  St.  Rep.  229,  18 
Pac.  803,  804,  16  Morr.  Min.  Rep.  236;  Book  v.  Justice  M.  Co.,  58  Fed. 
106,  119,  17  Morr.  Min.  Rep.  617;  Moore  v.  Hamerstag,  109  Cal.  122, 
41  Pac.  805,  806,  18  Morr.  Min.  Rep.  256. 

86  Kramer  v.  Settle,  1  Idaho,  485;  Van  Valkenburg  v.  HuflP,  1  Nev. 
142,  149;  Rush  v.  French,  1  Ariz.  99,  25  Pac.  816,  829. 

87  Gore  V.  McBrayer,  18  Cal.  582,  588. 

88  Kramer  v.  Settle,  1  Idaho,  485 ;  Dunlap  v.  Pattison,  4  Idaho,  473, 
95  Am.  St.  Rep.  140,  42  Pac.  504,  505. 

89  Post,  §  450. 

00  Van  Valkenburg  v.  Huff,  1  Nev.  142,  149;  Moore  v.  Hamerstag, 
109  Cal.  122,  41  Pac.  805,  806,  18  Morr.  Min.  Eep.  256;  Whiting  v. 
Straup,  17  Wjo.  1,  129  Am.  St.  Rep.  1U93,  95  Pac.  849,  851. 


§  332  THE   LOCATION   AND   ITS   REQUIREMENTS.  758 

long  as  tlie  first  location  remains  valid  and  subsisting."^ 
If,  however,  they  have  abandoned  or  forfeited  their 
rights  by  failure  to  comply  with  the  conditions  of  the 
agreement  nnder  which  the  location  was  originally 
made,  a  relocation  may  be  made  by  the  original  co- 
locator  or  agent  in  his  own  name.®^ 

Where  the  location  becomes  subject  to  relocation  by 
reason  of  the  failure  of  the  colocators  to  perform  the 
annual  labor  required  by  law  a  di:fferent  question  arises 
— a  subject  fully  discussed  in  subsequent  sections.^^ 

If  an  agent  makes  a  location  on  behalf  of  his  princi- 
pal, but,  pursuant  to  a  conspiracy  with  others,  permits 
the  location  to  lapse,  in  order  that  a  relocation  may  be 
made  in  his  own  and  others'  behalf,  the  remedy  of  the 
principal  after  such  relocation  would  be  an  action  for 
breach  of  contract  or  to  establish  and  enforce  a  trust 
in  the  claim  as  relocated  against  the  parties  relocat- 
ing.^* 

§  332.  Placer  locations  by  attorney  in  fact  in. 
Alaska. — Congress  on  August  1, 1912,  passed  an  act  en- 
titled "An  act  to  modify  and  amend  the  mining  laws 
in  their  application  to  the  territory  of  Alaska,"  which 
provides  as  follows : — 

That    no    association    placer-mining    claim    shall 

hereafter  be  located  in  Alaska  in  excess  of  forty 

81  Van  Valkenburg  v.  Huff,  1  Nev.  142,  149 ;  Thompson  v.  Spray,  72 
Cal.  528,  14  Pac.  182,  184;  Gore  v.  McBrayer,  18  Cal.  582,  587;  Morton 
V.  Solambo  C.  M.  Co.,  26  Cal.  527,  534;  Perelli  v.  Candiani,  42  Or.  625, 
71  Pac.  537;  Stevens  v.  Grand  Central  M.  Co.,  133  Fed.  28,  30,  67  C.  C. 
A.  284;  In  re  Auerbach,  29  L.  D.  208;  In  re  Teller,  26  L.  D.  484.  For 
a  ease  stated  upon  which  the  courts  held  a  trust  ex  maleficio  to  arise,  see 
Lockhart  v.  Leeds,  195  U.  S.  427,  435,  25  Sup.  Ct.  Eep.  76,  49  L.  ed.  263. 

92  Murley  v.  Ennis,  2  Colo.  300. 

83  Post,  §§  405,  406. 

94  Lockhart  v.  Johnson,  181  U.  S.  516,  529,  21  Sup.  Ct.  Rep.  665,  45 
L.  ed.  979;  Lockhart  v.  Leeds,  195  U.  S.  427,  438,  25  Sup.  Ct.  E«p.  76, 
49  L.  ed.  263. 


759       PLACER  LOCATIONS  BY  ATTORNEY  IN  FACT.      §  332 

acres,  and  on  every  placer-mining  claim  hereafter 
located  in  Alaska,  and  until  a  patent  has  been  issued 
therefor,  not  less  than  one  hundred  dollars'  worth  of 
labor  shall  be  performed  or  improvements  made  dur- 
ing each  year,  including  the  year  of  location,  for  each 
and  every  twenty  acres  or  excess  fraction  thereof. 

Sec.  2.  That  no  person  shall  hereafter  locate  any 
placer-mining  claim  in  Alaska  as  attorney  for  an- 
other unless  he  is  duly  authorized  thereto  by  a  power 
of  attorney  in  writing,  duly  acknowledged  and  re- 
corded in  any  recorder's  office  in  the  judicial  division 
where  the  location  is  made.  Any  person  so  author- 
ized may  locate  placer-mining  claims  for  not  more 
than  two  individuals  or  one  association  under  such 
power  of  attorney,  but  no  such  agent  or  attorney 
shall  be  authorized  or  permitted  to  locate  more  than 
two  placer-mining  claims  for  any  one  principal  or 
association  during  any  calendar  month,  and  no 
placer-mining  claim  shall  hereafter  be  located  in 
Alaska  except  under  the  limitations  of  this  act. 

Sec.  3.  That  no  person  shall  hereafter  locate, 
cause  or  procure  to  be  located  for  himself  more  than 
two  placer-mining  claims  in  any  calendar  month: 
Provided,  That  one  or  both  of  such  locations  may  be 
included  in  an  association  claim. 

Sec.  4.  That  any  placer-mining  claim  attempted 
to  be  located  in  violation  of  this  act  shall  be  null  and 
void,  and  the  whole  area  thereof  may  be  located  by 
any  qualified  locator  as  if  no  such  prior  attempt  had 
been  made. 

It  will  be  obser^^ed  that  the  general  placer  laws  are 
thus  modified  in  their  application  to  Alaska  in  the  fol- 
lowing respects: 

(1)  An  association  of  persons  cannot  locate  to  ex- 
ceed forty  acres,  instead  of  one  hundred  and  sixty,  al- 
lowed under  the  general  law.®^ 

95  Rev.  stats.,  §2330;  Comp.  Stats.  1901,  p.  1432;  5  Fed.  Stats.  Ann. 
42;    post,  §448. 


§  332  THE  LOCATION    AND   ITS   REQUIREMENTS.  760 

(2)  Annual  work  must  be  done  on  each  location  the 
same  as  elsewhere,  with  the  added  requirement  that  it 
must  be  done  during  the  year  in  which  the  location  is 
made.  Association  claims  require  one  hundred  dol- 
lars' worth  of  work  for  each  twenty  acres  or  fraction 
thereof.  Under  the  general  law  annual  work  to  the 
extent  of  one  hundred  dollars  is  required  to  be  done  on 
each  location  regardless  of  its  area.®® 

(3)  There  can  be  no  location  of  placer  ground  by  an 
agent  unless  he  is  given  a  written  power  of  attorney 
which  must  be  recorded  in  the  recorder's  office  in  the 
judicial  division  where  the  location  is  made. 

(4)  By  implication  it  permits  locations  to  be  made 
without  regard  to  the  system  of  public  land  surveys, 

i.  e.,  rectangular  lines,  corresponding  to  the  cardinal  v 
points.     This,  however,  has  been  the  practice  hereto- 
fore. 

(5)  The  number  of  locations  which  an  individual 
may  make  for  himself  is  limited  to  two  in  each  calendar 
month.  Under  the  general  laws  the  number  is  un- 
limited." 

(6)  An  individual  may  only  act  under  power  of  at- 
torney from  two  individuals  or  one  association  and 
may  only  locate  two  claims  in  his  representative  ca- 
pacity during  each  calendar  month. 

The  act  deals  only  with  placer-mining  claims."*  The 
general  principles  announced  in  the  preceding  section 
are  still  applicable  to  lode  claims  in  Alaska. 

»6  Post,  §  628. 
87  Post,  §  450. 

»7a  For  departmental  instructions  on  the  subject  of  location  of 
placer  claims  by  agent  in  Alaska,  see  41  L.  D.  347. 


761 


DISCOVERY  TELE  SOUECE  OF  TITLE. 


§335 


Article  III.    The  Discovery. 


{  335.     Discovery    the    source    of 
the  miner's  title. 

§  336.     What    constitutes  a    valid 
discovery. 

§  337.     Where  such  discovery  must 
be  made. 


§  338.  The  effect  of  the  loss  of 
discovery  upon  the  re- 
mainder of  the  location. 

§  339.  Extent  of  locator's  rights 
after  discovery  and  prior 
to  completion  of  loca- 
tion. 


§  335.    Discovery  the  source  of  the  miner's  title. — 

Discovery  in  all  ages  and  all  countries  has  been  re- 
garded as  conferring  rights  or  claims  to  reward. 
Gamboa,  who  represented  the  general  thought  of  his 
age  on  this  subject,  was  of  the  opinion  that  the  dis- 
coverer of  mines  was  even  more  worthy  of  reward 
than  the  inventor  of  a  useful  art.  Hence,  in  the  min- 
ing laws  of  all  civilized  countries  the  great  considera- 
tion for  granting  mines  to  individuals  is  discovery. 
''Rewards  so  bestowed,"  says  Gamboa,  "besides  be- 
ing a  proper  return  for  the  labor  and  anxiety  of  the 
discoverers,  have  the  further  effect  of  stimulating 
others  to  search  for  veins  and  mines,  on  which  the 
general  prosperity  of  the  state  depends."*^ 

While  in  some  of  the  older  countries  of  Europe;  aa 
in  France  and  Belgium,  the  nature  of  the  reward  to 
the  discoverer  was  something  less  than  an  absolute 
preference  in  the  right  of  enjoyment,  yet  in  Spain  and 
Spanish-America  there  was  guaranteed  to  him  ''an 
absolute  right  of  property  in  the  mine  which  he  dis- 
covers if  he  will  take  the  proper  measures  to  denounce 

98  Halleck's  De  Fooz  on  the  Law  of  Mines,  p.  xxvi.  Text  quoted  in 
Creede  &  Cripple  Creek  M.  &  M.  Co.  v.  Uinta  T.  M.  &  T.  Co.,  196  U.  S.  337, 
343,  25  Sup.  Ct.  Rep.  26G,  49  L.  ed.  501;  Lawson  v.  United  States  Mining 
Co.,'  207  U.  S.  1,  13,  28  Sup.  Ct.  itep.  15,  52  L.  ed.  65;  Rapp  v.  Heirs  of 
Healey,  38  L.  D.  387. 


R  335  THE    DISCOVEBY.  762 

it  and  have  it  duly  registered.  No  one  can  have  any 
preference  over  liim,  and  he  loses  the  rights  which  re- 
sult from  his  discovery  only  through  his  own  neglect 
to  make  it  publicly  known  in  the  manner  in  which  the 
law  directs."^' 

This  wise  and  liberal  policy  which  pervaded  the 
Mexican  system  at  the  time  of  the  conquest  and  the 
acquisition  of  California  by  the  United  States  became 
the  recognized  basis  of  mining  rights  and  privileges 
as  they  were  held  and  enjoyed  under  the  local  rules 
and  regulations  established  by  the  miners  occupying 
the  public  mineral  lands  within  the  newly  acquired  ter- 
ritory, and  in  all  subsequent  legislation,  whether  con- 
gressional, state,  or  territorial,  discovery  is  recognized 
as  the  primary  source  of  title  to  mining  claims.'"" 

As  was  said  by  Halleck  in  his  introduction  to  De 
Fooz  on  the  "Law  of  Mines,'"  ''Discovery  is  made  the 
source  of  title,  and  development,  or  working,  the  con- 
dition of  the  continuance  of  that  act." 

Whatever  may  be  the  rule  governing  the  acquisition 
of  title  to  ' '  claims  usually  called  placers,  including  all 
forms  of  deposit,  excepting  veins  of  quartz  or  other 
rock  in  place,"  of  which  we  treat  in  a  subsequent 
chapter,  there  can  be  no  valid  appropriation  of  a  lode 
claim  unless  there  has  been  an  antecedent  discovery. 
"No  location  of  a  mining  claim  shall  be  made  until 
the  discovery  of  the  vein  or  lode  within  the  limits  of 
the  claim  located.' 


Ji2 


99  Halleck's  De  Fooz  on  the  Law  of  Mines,  p.  xxvii. 

100  Erhardt  v.  Boaro,  113  U.  S.  527,  535,  5  Sup.  Ct.  Rep.  560,  28  L. 
ed.  1113,  15  Morr.  Min.  Rep.  472. 

1  San  Francisco,  1860. 

2  Rev.  Stats.,  §  2320;  Comp.  Stats.  1901,  p.  1432;  5  Fed.  Stats.  Ann.  8; 
Chrisman  v.  Miller.  197  U.  S.  313,  321,  25  Sup.  Ct.  Rep.  468,  49  L.  ed. 
770;  Garabaldi  v.  GriUo,  17  Cal.  App.  540,  120  Pac.  425,  426. 


763  DISCOVERT   THE  SOURCE  OF  TITLE.  §  335 

But  this  provision  of  the  statute  does  not  require 
that  the  locator  of  the  claim  must  be  the  original  dis- 
coverer of  the  vein  or  lode.  If  there  has  been  a  dis- 
covery by  some  one  other  than  the  locator,  and  the 
latter  has  knowledge  of  the  existence  of  mineral  and 
adopts  the  former  discovery,  he  is  entitled  to  make  a 
location.' 

A  location  can  rest  only  upon  an  actual  discovery  of 
the  vein  or  lode.* 

Discovery  of  mineral  is  the  initial  fact.  Without 
that  no  rights  can  be  acquired.'^  In  litigation  arising 
out  of  conflicting  locations  parties  may  stipulate  that 
the  lands  are  mineral  lands,  but  this  does  not  dis- 
pense with  proof  of  discovery.*  Such  discovery  must 
precede  the  location,'  or  be  in  advance  of  intervening 

3  Hayes  v.  Lavagnino,  17  Utah,  185,  53  Pac.  1029,  1031,  19  Morr.  Min. 
Rep.  485;  Jupiter  M.  Co.  v.  Bodie  Cons.  M.  Co.,  11  Fed.  666,  676,  7  Saw. 
96,  4  Morr.  Min.  Rep.  411.  See  Erhardt  v.  Boaro,  113  U.  S.  527,  536,  5 
Sup.  Ct.  Rep.  560,  28  L.  ed.  1113,  15  Morr.  Min.  Rep.  472;  Nevada  Sierra 
Oil  Co.  V.  Home  Oil  Co.,  98  Fed.  673,  678,  40  Morr.  Min.  Rep.  283; 
Copper  Globe  Cons.  M.  Co.  v.  Allman,  23  Utah,  410,  64  Pac.  1019,  1022, 
21   Morr.   Min.  Rep.  296.     See  post,   §  403. 

*  King  V.  Amy  &  Silversmith  M.  Co.,  152  U.  S.  222,  226,  14  Sup.  Ct. 
Rep.  510,  38  L.  ed.  419,  18  Morr.  Min.  Rep.  76;  Tuolumne  Cons.  M.  Co. 
V.  Maier,  134  Cal.  583,  66  Pac.  863,  864,  21  Morr.  Min.  Rep.  678. 

6  Creede  &  Cripple  Creek  M.  &  M.  Co.  v.  Uinta  T.  M.  &  T.  Co.,  196 
U.  S.  334,  345,  25  Sup.  Ct.  Rep.  266,  49  L.  ed.  501;  Garabaldi  v.  Grillo, 
17  Cal.  App.  540,  120  Pac.  425,  426;  HaU  v.  McKinnon,  193  Fed.  572, 
577. 

6  Garabaldi  v.  Grillo,  17  Cal.  App.  540,  120  Pac.  425,  426. 

7  Hauswirth  v.  Butcher,  4  Mont.  299,  1  Pac.  714,  715;  Upton  v.  Larkin, 
7  Mont.  449,  17  Pac.  728,  731,  15  Morr.  Min.  Rep.  404;  North  Noonday 
M.  Co.  V.  Orient  M.  Co.,  6  Saw.  299,  309,  1  Fed.  522,  530,  9  Morr.  Min. 
Rep.  529;  Jupiter  M.  Co.  v.  Bodie  Cons.  M.  Co.,  7  Saw.  96,  109,  11  Fed. 
666,  675,  4  Morr.  Min.  Rep.  411;  Burke  v.  McDonald,  2  Idaho,  646  (679),  33 
Pac.  49,  50,  7  Morr.  Min.  Rep.  325;  Stinchfield  v.  Gillis,  96  Cal.  33,  30 
Pac.  839,  841,  17  Morr.  Min.  Rep.  497;  McLaughlin  v.  Thompson,  2  Colo. 
App.  135,  29  Pac.  816;  Waterloo  M.  Co.  v.  Doe,  56  Fed.  68.'5,  689,  17 
Morr.  Min.  Rep.  586;   Etliug  v.  Potter,  17  L.  D.  424;   N.  P.  R.  R.  Co. 


§  335  THE   DISCOVERY.  764 

rights.*  The  proof  of  recording  and  marking  a  claim 
will  not  authorize  the  court  to  presume  a  discovery.' 

If  no  discovery  is  made  until  after  the  acts  of  loca- 
tion have  been  performed,  the  location  will  date  from 
the  time  of  discovery.^" 

V.  Marshall,  17  L.  D.  545;  Ledoux  v.  Forester,  94  Fed.  600,  602; 
Tuolumne  Cons.  M.  Co.  v.  Maier,  134  Cal.  583,  66  Pae.  863,  864,  21  Morr. 
Min.  Rep.  678;  Gemmell  v.  Swain,  28  Mont.  331,  98  Am.  St.  Rep.  570,  72 
Pac.  662,  663,  22  Morr.  Min.  Rep.  716;  Garabaldi  v.  Grillo,  17  Cal.  App. 
540,  120  Pac.  425,  426. 

8  Patchen  v.  Keeley,  19  Nev.  404,  14  Pac.  347,  353;  North  Noonday 
M.  Co.  V.  Orient  M.  Co.,  6  Saw.  299,  309,  1  Fed.  522,  530,  9  Morr.  Min. 
Rep.  529;  Jupiter  M.  Co.  v.  Bodie  Cons.  M.  Co.,  7  Saw.  96,  109,  11  Fed. 
666,  676,  4  Morr.  Min.  Rep.  411;  Golden  Terra  M.  Co.  v.  Mahler,  4  Morr. 
Min.  Rep.  390,  4  Pac.  C.  L.  J.  405;  Wight  v.  Taber,  2  L.  D.  738,  743; 
In  re  Mitchell,  2  L.  D.  752 ;  Beals  v.  Cone,  27  Colo.  473,  83  Am.  St.  Rep. 
92,  62  Pac.  948,  952,  20  Morr.  Min.  Rep.  591;  Brewster  v.  Shoemaker,^ 
28  Colo.  176,  89  Am.  St.  Rep.  188,  63  Pac.  309,  310,  53  L.  R.  A.  793, 
21  Morr.  Min.  Rep.  155;  Fisher  v.  Seymour,  23  Colo.  542,  49  Pac.  30, 
33;  Perigo  v.  Erwin,  85  Fed.  904,  905,  19  Morr.  Min.  Rep.  269;  Erwin 
V.  Perigo,  93  Fed.  608,  611,  35  C.  C.  A.  482 ;  Reins  v.  Raunheim,  28  L.  D. 
526;  Nevada  Sierra  Oil  Co.  v.  Home  Oil  Co.,  98  Fed.  673,  680,  20  Morr. 
Min.  Rep.  283;  Olive  Land  &  D.  Co.  v.  Olmstead,  103  Fed.  568,  573,  20 
Morr.  Min.  Rep.  700;  Sands  v.  Cruikshaiik,  15  S.  D.  142,  87  N.  W.  589; 
Cedar  Canyon  Cons.  M.  Co.  v.  Yarwood,  27  Wash.  271,  91  Am.  St.  Rep. 
841,  67  Pac.  749,  752,  22  Morr.  Min.  Rep.  11 ;  Bay  v.  Oklahoma  Southern 
Gas  <k  O.  Co.,  13  Okl.  425,  73  Pac.  936,  939;  Dean  v.  Omaha- Wyoming 
Oil   Co.    (Wyo.),    128   Pac.    881,   883. 

9  Smith  V.  Newell,  86  Fed.  56. 

10  Ante,  §330;  Beals  v.  Cone,  27  Colo.  473,  83  Am.  St.  Rep.  92,  62 
Pac.  948,  952,  20  Morr.  Min.  Rep.  591;  Tuolumne  M.  Co.  v.  Maier,  134 
Cal.  583,  66  Pac.  863,  864,  21  Morr.  Min.  Rep.  678;  Brewster  v.  Shoe- 
maker, 28  Colo.  176,  63  Pac.  309,  310,  21  Morr.  Min.  Rep.  155;  Erwin 
V.  Perigo,  93  Fed.  608,  611,  35  C.  C.  A.  482;  Jupiter  M.  Co.  v.  Bodie 
Cons.  M.  Co.,  11  Fed.  666,  676,  7  Saw.  96,  4  Morr.  Min.  Rep.  411;  North 
Noonday  M.  Co.  v.  Orient  M.  Co.,  1  Fed.  522,  531,  6  Saw.  299,  309,  9 
Morr.  Min.  Rep.  529;  Nevada  Sierra  Oil  Co.  v.  Home  Oil  Co.,  98  Fed. 
673,  677,  20  Morr.  Min.  Rep.  283;  Creede  &  Cripple  Creek  M.  &  M.  Co. 
V.  Uinta  T.  M.  &  M.  Co.,  196  U.  S.  337,  345,  25  Sup.  Ct.  Rep.  266,  49 
Xj.  ed.  501;  Protective  Mining  Co.  V.  Forest  City  M.  Co.,  51  Wash.  643, 
99  Pac.  1033,  1034. 


765  WHAT  CONSTITUTES  A  VALID  DISCOVERY.  §  336 

Priority  of  discovery  gives  priority  of  right  against 
naked  location  and  possession,  without  discover\'/^ 

It  has  been  said  that  this  requirement  as  to  ante- 
cedent discovery  is  made  for  the  benefit  of  the  United 
States,  so  that  land  cannot  be  acquired  under  this  law 
until  its  character  is  first  ascertained  to  be  mineral." 

It  will  be  necessary  for  us  to  determine: — • 

(1)  What  constitutes  a  valid  discovery; 

(2)  Where  such  discovery  must  be  made; 

(3)  The  effect  of  the  loss  of  discovery  upon  the  re- 
mainder of  the  location; 

(4)  The  extent  of  a  locator's  rights  after  discovery 
and  prior  to  completion  of  location. 

§  336.  What  constitutes  a  valid  discovery. — In  de- 
termining what  constitutes  such  a  discovery  as  will 
satisfy  the  law  and  form  the  basis  of  a  valid  mining 
location,  we  find,  as  in  the  case  of  the  definition  of  the 
terms  ''lode"  or  *'vein,"  that  the  tendency  of  the 
courts  is  toward  marked  liberality  of  construction 
where  a  question  arises  between  two  miners  who  have 
located  claims  upon  the  same  lode,  or  within  the  same 
surface  boundaries,  and  toward  strict  rules  of  inter- 
pretation when  the  miner  asserts  rights  in  property 
which  either  prima  facie  belongs  to  some  one  else  or  is 
claimed  under  laws  other  than  those  providing  for  the 
disposition  of  mineral  lands,  in  which  latter  case  the 
relative  value  of  the  tract  is  a  matter  directly  in  issue. 

11  Grossman  v.  Pendery,  8  Fed.  693 ,  2  McCrary,  139,  4  Morr.  Min.  Rep. 
431;  Beals  v.  Cone,  27  Colo.  473,  83  Am.  St.  Eep.  92,  62  Pac.  948,  952, 
20  Morr.  Min.  R«p.  591. 

12  Upton  V.  Larkin,  7  Mont.  449,  17  Pac.  728,  15  Morr.  Min.  Rep.  404; 
Shoshone  M.  Co.  v.  Eutter,  87  Fed.  801,  808,  31  C.  C.  A.  223,  19  Morr. 
Min.  Rep.  356;  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037,  1040,  19 
Morr.  Min.  Rep.  650. 


§  336  THE   DISCOVERT.  766- 

The  reason  for  this  is  obvious.  In  the  case  where  two 
miners  assert  rights  based  upon  separate  alleged  dis- 
coveries on  the  same  vein,  neither  is  hampered  with 
presumptions  arising  from  a  prior  grant  of  the  tracts 
to  overcome  which  strict  proof  is  required.'^  In  ap- 
plying a  liberal  rule  to  one  class  of  cases  and  a  rigid 
rule  to  another,  the  courts  justify  their  action  upon 
the  theory  that  the  object  of  each  section  of  the  Ee- 
vised  Statutes,  and  the  whole  policy  of  the  entire  law, 
should  not  be  overlooked." 

The  particular  character  of  each  case  must  be  kept 
continually  in  view. 

The  fact  is,  that  there  is  a  substantial  difference 
in  the  object  and  policy  of  the  law  between  the  cases 
where  the  determination  of  the  question  as  to  what^ 
constitutes  the  discovery  of  a  vein,  or  lode,  between 
different  claimants  of  the  same  lode  under  section 
twenty-three  hundred  and  twenty  of  the  Revised 
Statutes,  on  the  one  hand,  and  a  "lode  known  ta 
exist"  within  the  limits  of  a  placer  claim  at  the  time 
the  application  is  made  for  a  patent  therefor  under 
section  twenty-three  hundred  and  thirty-three,  on 
the  other." 

In  the  first  class  of  cases,  it  was  never  intended  to 
''weigh  scales"  to  determine  the  value  of  the  mineral 

15  Ordinarily,  the  controversy  in  this  class  of  cases  is  confined  to 
questions  of  mere  priority.  Steele  v.  Tanana  Mines  B.  Co.,  148  Fed. 
678,  6S0,  78  C.  C.  A.  412;  Lange  v.  Robinson,  148  Fed.  799,  803,  7& 
C.  C.  A.  1. 

14  Text  quoted  with  approval,  Grand  Central  M.  Co.  v.  Mammoth  M. 
Co.,  29  Utah,  490,  83  Pac.  648,  677;  appeal  dismissed,  213  U.  S.  72,  29 
Sup.  Ct.  Rep.  413,  53  L.  pd.  702;  Steele  v.  Tanana  Mines  R.  Co.,  14» 
Fed.  678,  680,  78  C.  C.  A.  412. 

16  Migeon  V.  Mont.  Cent.  Ry.,  77  Fed.  249,  255,  23  C.  C.  A.  156,  13 
Morr.  Min.  Rep.  446.  See,  also,  Bonner  v.  Meikle,  82  Fed.  697,  703,  19 
Morr.  Min.  Rep.  83;  Ambergris  Min.  Co.  v.  Day,  12  Idaho,  108,  85  Pac. 
109,  113;  Fox  v.  Myers,  29  Nev.  169,  86  Pac.  793,  797. 


767  WHAT  CONSTITUTES  A  VALID  DISCOVERT.  §  336 

found."  In  the  latter  class,  the  rule  is  different. 
Slight  evidence  of  the  existence  of  a  lode  might  satisfy 
the  demands  of  the  law  upon  the  question  of  discovery 
as  the  basis  of  location,  when  clear  and  convincing 
proof  would  be  required  to  establish  the  existence  of 
a  ''known  vein"  within  a  prior  townsite  or  placer 
patent. 

The  supreme  court  of  the  United  States  clearly 
recognizes  the  distinction  between  the  two  classes  of 
cases,  by  intimating  that  the  land  officers  might,  on  a 
prima  facie  case,  decide  the  right  of  an  applicant  to  a 
vein  or  lode  and  issue  a  patent  therefor,  upon  proof 
less  conclusive  than  would  be  required  where  a  conflict 
arises  between  a  prior  placer  and  subsequent  lode 
patent." 

Even  in  the  same  line  of  cases,  that  court  at  one 
time  approved  a  liberal  definition  of  a  lode  "known  to 
exist"  within  a  placer;"  and  at  another  insisted  upon 
adhering  to  strict  rules  of  construction,"  and  ulti- 
mately announced  its  conclusion,  that  after  all  it  is  a 
question  for  the  jury;  that  it  cannot  be  said  as  a  mat- 
ter of  law,  in  advance,  how  much  gold  or  silver  must 
be  found  in  a  vein  before  it  will  justify  exploitation 
and  properly  be  called  a  "known  vein."^° 

16  Bonner  v.  Meikle,  82  Fed.  697,  703,  19  Morr.  Min.  Rep.  83;  Sho- 
shone M.  Co.  V.  Butter,  87  Fed.  801,  808,  31  C.  C.  A.  223,  19  Morr.  Min. 
Rep.  356;  Ambergris  Min.  Co.  v.  Day,  12  Idaho,  108,  85  Pae.  109,  117; 
Fox  V.  Myers,  29  Nev.  169,  86  Pac.  793,  797;  Ritter  v.  Lynch,  123  Fed. 
930;  Lange  v.  Robinson,  148  Fed.  799,  803,  79  C.  C.  A.  1. 

17  Iron  S.  M.  Co.  v.  Campbell,  135  U.  S.  286,  293,  10  Sup.  Ct.  Rep. 
765,  34  L.  ed.  155,  16  Morr.  Min.  R«p.  218. 

18  Iron  S.  M.  Co.  v.  Cheesman,  116  U.  S.  529,  537,  6  Sup.  Ct.  Rep. 
481,  29  L.  ed.  712. 

19  United  States  v.  Iron  S.  M.  Co.,  128  U.  S.  673,  676,  9  Sup.  Ct.  Rep. 
195,  32  L.  ed.  571. 

20  Iron  S.  M.  Co.  v.  Mike  &  Starr  Co.,  143  U.  S.  394,  405,  12  Sup.  Ct. 
Rep.  543,  36  L.  ed.  201,  17  Morr.  Min.  Rep.  436. 


§  336  THE   DISCOVEET.  768 

Judge  De  Witt,  of  tlie  supreme  court  of  Montana,  in 
a  dissenting  opinion  filed  in  the  ease  of  Shreve  v. 
Copper  Bell  M.  Co.,''  and  speaking  for  tlie  court  in 
tlie  later  case  of  Brownfield  v.  Bier,"  reviewed  all  the 
adjudicated  law  upon  the  subject  of  what  constitutes 
a  "lode,"  as  well  as  a  "discovery,"  and  clearly 
showed  the  reasons  for  the  distinctions  drawn  between 
the  two  classes  of  cases. 

To  hold  that,  in  order  to  constitute  a  discovery  as 
the  basis  of  the  location,  it  must  be  demonstrated  that 
the  discovered  deposit  will,  when  worked,  yield  a 
profit,  or  that  the  lands  containing  it  are,  in  the  condi- 
tion in  which  they  are  discovered,  more  valuable  for 
mining  than  for  any  other  purpose,  would  be  to  defeat 
the  object  and  policy  of  the  law. 

It  is  enough  if  the  vein  or  deposit  has  a  present  or 
prospective  commercial  value.'^  A  location  may  be 
made  and  be  valid  when  made.  It  may  subsequently 
appear  that  the  lands  are  not  of  the  quality  which 
would  justify  the  issuance  of  a  patent  under  the  min- 
ing laws,  but  this  would  not  determine  the  invalidity 
of  the  location.'*  A  technical  discovery  does  not  of 
itself  establish  the  patentable  mineral  character  of  the 
land,  but  it  is  sufiQcient  to  sanction  a  right  of  posses- 
sion under  the  mining  laws"*  which  will  prevail  over 
subsequent  locations  embracing  the  same  ground.'^ 

What  may  constitute  a  sufiQcient  discovery  to  war- 
rant a  location  of  a  claim  may  be  wholly  inadequate 

21  11  Mont.  309,  28  Pac.  315,  318. 

22  15  Mont.  403,  39  Pac.  461,  462. 

23  Madison  v.  Octave  Oil  Co.,  154  Cal.  768,  99  Pac.  176,  178. 

24  aipper  M.  Co.  v.  Eli  M.  &  L.  Co.,  33  L.  D.  660;  S.  C,  on  review, 
34  L.  D.  401;  Brophy  v.  O'Hare,  34  L.  D.  596.  See,  also,  Bevia  v.  Mark- 
land,  130  Fed.  226. 

26  Instructions  arguendo,  34  L.  D.  201. 
26  Bevis  V.  Markland,  130  Fed.   226,  228. 


769  WHAT  CONSTITUTES  A   VALID  DISCOVERY,  §  336 

to  justify  the  locator  in  claiming  or  exercising  any 
rights  reserved  by  the  statutes.  "What  constitutes  a 
discover}'-  that  will  validate  a  location  is  vei^^  different 
from  what  constitutes  an  apex  to  which  attaches  the 
statutory  right  to  invade  the  possession  of  and  appro- 
priate the  property  which  is  presumed  to  belong  to 
an  adjoining  owner." 

Most,  if  not  all,  of  the  decisions  arising  out  of  con- 
troversies between  lode  claimants  on  the  one  hand  and 
the  owners  of  prior  patented  placers  on  the  other,  or 
between  the  holders  of  title  under  patented  townsites 
and  parties  asserting  rights  under  the  mining  laws, 
insist  that,  to  fulfill  the  designation  of  known  lodes, 
or  veins,  which  are  reserved  out  of  that  class  of  pat- 
ents, such  lodes,  or  veins,  must  be  clearly  ascertained 
and  be  of  such  extent  as  to  render  the  land  more  valu- 
able on  that  account  and  justify  their  exploitation.^* 

No  court  has  ever  held  that  in  order  to  entitle  one  to 
locate  a  mining  claim  ore  of  commercial  value,  in 
either  quantity  or  quality,  must  first  be  discovered.^' 
Such  a  theory  would  make  most  mining  locations  im- 
possible. 

Logically  carried  out  it  would  prohibit  a  miner 
from  making  any  valid  location  until  he  had  fully 
demonstrated  that  the  vein,  or  lode,  of  quartz  or 
other  rock  in  place  bearing  gold  or  silver  which  he 
had  discovered,  would  pay  all  the  exjDenses  of  re- 

27  Grand  Central  Min.  Co.  v.  Mammoth  M.  Co.,  29  Utah,  490,  83  Pac. 
648,  668. 

28  United  States  v.  Iron  S.  M.  Co.,  128  U.  S.  673,  683,  9  Sup.  Ct.  Eep. 
195,  32  L.  ed.  571;  Deffeback  v.  Hawke,  115  U.  S.  392,  404,  6  Sup.  Ct. 
Rep.  95,  29  L.  ed.  423;  Davis  v.  Weibbold,  139  U.  S.  507,  517,  11  Sup. 
Ct.  Rep.  628,  35  L.  ed.  238;  Dower  v.  Richards,  151  U.  S.  658,  662,  14 
Sup.  Ct.  Rep.  452,  38  L.  ed.  305,  17  Morr.  Min.  Rep.  704.     Ante,  §  176. 

29  See  Cascaden  v.  Bartolis,  146  Fed.  739,  741,  77  C.  C.  A.  496;  S.  C, 
second  appeal,  162  Fed.  267,  89  C.  C.  A.  247;  Madison  v.  Octave  Oil  Co., 
154  Cal.  768,  99  Pae.   176. 

Lindley  on  M. — 49 


§  336  THE   DISCOVERY.  770 

moving,  extracting,  crusliing,  and  reducing  the  ore, 
and  leave  a  profit  to  the  owner.  If  this  view  should 
be  sustained,  it  would  lead  to  absurd,  injurious,  and 
unjust  results.^" 

It  has  been  frequently  said  that  a  valid  location  may 
be  made  whenever  the  prospector  has  discovered  such 
indications  of  mineral  that  he  is  willing  to  spend  his 
time  and  money  in  following  it,  in  expectation  of  find- 
ing ore,  and  such  a  location  may  be  made  of  a  ledge 
deep  in  the  ground  and  appearing  at  the  surface,  not 
in  the  shape  of  ore,  but  in  vein  matter  only." 

But  Judge  Eoss,  in  speaking  of  petroleum  lands, 

forcefully  said : — 

Mere  indications,  however  strong,  are  not,  in  my 
opinion,  sufficient  to  answer  the  requirements  of  the 
statute,  which  requires  as  one  of  the  essential  condi- 
tions to  the  making  of  a  valid  location  of  unappro- 
priated public  land  of  the  United  States  under  the 
mining  laws,  a  discovery  of  mineral  within  the  limits 

of  the  claim Indications  of  the  existence  of 

a  thing  is  not  the  thing  itself.^^ 

An  expectation  is  something  more  than  a  hope.  A 
location  made  in  the  "hope  of  finding  some  ore  in  it 

so  Judge  Hawley  in  Book  v.  Justice  M.  Co.,  58  Fed.  106,  124,  17  Morr. 
MiD  Rep.  617  (followed  in  Bonner  v.  Meikle,  82  Fed.  697,  703,  19  Morr. 
Min,  Rep.  83). 

31  Burke  v.  McDonald,  2  Idaho,  1022,  3  Idaho,  296,  29  Pac.  98,  101; 
Harrington  v.  Chambers,  3  Utah,  94,  1  Pac.  362,  373;  Mont.  Cent.  Rj. 
V.  Migeon,  68  Fed.  811,  814;  Columbia  Copper  M.  Co.  v.  Duchess  M.  M. 
&  S.  Co.,  13  Wyo.  244,  79  Pac.  385,  386. 

32  Nevada  Sierra  Oil  Co.  v.  Home  Oil  Co.,  98  Fed.  673,  675,  20  Morr. 
Min.  Rep.  283.  To  same  effect,  see  Tulare  Oil  Co.  v.  S.  P.  R.  R.  Co.,  29 
L.  D.  269;  Olive  Land  &  D.  Co.  v.  Olmstead,  103  Fed.  568,  578,  20  Morr. 
Min.  Rep.  700 ;  Miller  v.  Chrisman,  140  Cal.  440,  98  Am.  St.  Rep.  63,  73  Pac. 
1083,  1084,  74  Pac.  444;  affirmed,  Chrisman  v.  Miller,  197  U.  S.  313,  321, 
25  Sup.  Ct.  Rep.  468,  49  L.  ed.  770;  Bay  v.  Oklahoma  Southern  Gas  & 
O.  Co.,  13  Okl.  425,  73  Pac.  936,  940;  Weed  v.  Snook,  144  Cal.  439,  77 
Pac.  1023,  1026;  Whiting  v.  Straup,  17  Wyo.  1,  129  Am.  St.  Rep.  1093, 
95  Pac.  849,  853. 


771  WHAT  CONSTITUTES  A   VALID  DISCOVERY.  §  336 

at  some  time"  is  worthless,"  unless  tlie  hope  should 
be  realized  before  some  one  else  makes  a  discovery. 
While  the  courts  permit  a  liberal  construction,  the 
liberality  must  be  exercised  within  reasonable  and 
common-sense  limits.  Locations  are  not  permitted 
upon  a  conjectural  or  imaginary  existence  of  a  vein.^* 

To  constitute  a  discovery  the  law  requires  something 
more  than  conjecture,  hope  or  even  indication." 

There  must  be  something  beyond  a  mere  guess  on 
the  part  of  the  miner  to  authorize  him  to  make  a  loca- 
tion which  will  exclude  others  from  the  ground,  such 
as  the  discovery  of  the  presence  of  the  precious  metals 
in  it,  or  in  such  proximity  to  it  as  to  justify  a  reason- 
able belief  in  their  existence." 

Every  crevice  or  seam  in  the  rock,  even  if  filled  with 
vein  matter,  does  not  necessarily  constitute  a  vein.^^ 
But  something  must  be  found  to  distinguish  it  from 
the  surrounding  mass. 

While  the  contents  of  ore-bearing  veins  widely 
differ,  there  is  that  indescribable  peculiarity  in  the 
ledge  matter,  the  matrix  of  all  ledges,  by  which  the 
experienced  miner  easily  recognizes  his  vein  when 
discovered." 

»8  Waterloo  M.  Go.  v.  Doe,  56  Fed.  685,  17  Morr.  Min.  Eep.  586. 

34  King  V.  Amy  &  Silversmith  M.  Co.,  152  U.  S.  222,  227,  14  Sup.  Ct. 
Rep.  510,  38  L.  ed.  419,  18  Morr.  Min.  Rep.  76. 

86  Miller  v.  Chrisman,  140  Cal.  440,  98  Am.  St.  Rep.  63,  73  Pac.  1083, 
1084;  affirmed,  Chrisman  v.  Miller,  197  U.  S.  313,  321,  25  Sup.  Ct.  Rep. 
468,  49  L.  ed.  770. 

36  Erhardt  v.  Boaro,  113  U.  S.  527,  536,  5  Sup.  Ct.  Rep.  560,  28  L.  ed. 
1113,  15  Morr.  Min.  Rep.  472;  Shoshone  M.  Co.  v.  Rutter,  87  Fed.  801, 
807,  31  C.  C.  A.  223,  19  Morr.  Min.  Rep.  356;  Copper  Globe  M.  Co.  v. 
Allman,  23  Utah,  410,  64  Pac.  1019,  1022,  21  Morr.  Min.  Rep.  296. 

3T  Burke  v.  McDonald,  2  Idaho,  646,  33  Pac.  49,  50,  17  Morr  Min.  Rep. 
325;  Mont.  Cent.  Ry.  v.  Migeon,  68  Fed.  811,  813. 

38  Burke  v.  McDonald,  2  Idaho,  646,  33  Pac.  49,  50,  17  Morr  Min.  Rep. 
325. 


§  336  THE   DISCOVERY.  772 

Judge  Hallett  was  of  the  opinion  that  the  discovery 
must  be  of  vein  matter  in  place  in  the  form  of  a  vein, 
or  lode.^** 

Discovery  of  detached  pieces  of  quartz,  mere 
bunches,  or  '-'float,"  is  not  sufficient." 

Neither  the  size  nor  richness  of  the  vein  is  material.*^ 

Any  genuine  discovery  is  sufficient.*^ 

While  the  courts  may  be  unable  to  define  with  suffi- 
cient accuracy  for  all  purposes  what  is  necessary  to 
constitute  a  discovery,  they  may  have  no  difficulty  in 
discriminating  between  the  genuine  and  the  counter- 
feit, the  real  and  the  sham. 

The  land  department,  whose  function  it  is  to  deter- 
mine in  all  applications  for  patent  what  constitutes  a 
discovery,  has  uniformly  adopted  a  liberal  rule  of  con- 
struction. In  the  judgment  of  that  tribunal,  a  mineral 
discovery  sufficient  to  warrant  the  location  of  a  mining 
claim  may  be  regarded  as  proven  when  mineral  is 
found  and  the  evidence  shows  that  a  person  of  ordi- 
nary prudence  would  be  justified  in  a  further  expendi- 
ture of  his  labor  and  means  with  a  reasonable  prospect 
of  success." 

39  Van  Zandt  v.  Argentine  M.  Co.,  8  Fed.  725,  727,  2  McCrary,  159, 
4  Morr.  Min.  Rep.  441. 

40  Jupiter  M.  Co.  v.  Bodie  Cons.  M.  Co.,  7  Saw.  96,  107,  11  Fed.  666, 
675,  4  Morr.  Min.  Eep.  411;  Book  v.  Justice  M.  Co.,  58  Fed.  106,  120, 
17  Morr.  Min.  Rep.  617. 

*i  Ante,  §  294. 

42  O'Donnell  v.  Glenn,  8  Mont.  248,  252,  19  Pac.  302. 

43  Castle  V.  Womble,  19  L.  D.  455 ;  Walker  v.  S.  P.  R.  R.  Co.,  24  L.  D. 
172;  MicMe  v.  Gothberg,  30  L.  D.  407;  Chrisman  v.  Miller,  197  U.  S. 
313,  322,  25  Sup.  a.  Eep.  468,  49  L.  ed.  770;  Charlton  v.  Kelly,  156  Fed. 
433,  436,  84  C.  C.  A.  295,  13  Ann.  Cas.  518;  Lange  v.  Robinson,  148 
Fed.  799,  803,  79  C.  C.  A.  1;  Garabaldi  v.  Grillo,  17  Cal.  App.  540,  120 
Pac.  425,  426;  Madison  v.  Octave  Oil  Co.,  154  Cal.  768,  99  Pac.  176,  178; 
In  re  Yard,  38  L.  D.  59. 


773  WHAT  CONSTITUTES  A   VALID  DISCOVERY.  §  336 

Expert  testimony  is  permissible  to  establish  this 
fact,  as  this  is  not  a  matter  of  "common  knowledge."" 

The  value  of  a  mineral  deposit  is  a  matter  into  which 
the  government  does  not  inquire  as  between  two  min- 
eral claimants.  Inquiries  of  this  character  are  con- 
fined to  controversies  between  mineral  and  agricul- 
tural claimants." 

There  is  a  material  difference  between  a  discoverer 
being  willing  to  spend  his  time  and  money  in  exploiting 
the  ground  and  being  justified  in  doing  so.  The  former 
is  a  question  to  be  answered  by  the  miner  himself;  the 
latter  would  present  a  question  for  expert  testimony 
and  determination  by  a  jury.*^ 

But  it  would  seem  that  the  question  should  not  be 
left  to  the  arbitrary  will  of  the  locator.  Willingness, 
unless  evidenced  by  actual  exploitation,  would  be  a 
mere  mental  state  which  could  not  be  satisfactorily 
proved.  The  facts  which  are  within  the  observation 
of  the  discoverer,  and  which  induce  him  to  locate, 
should  be  such  as  would  justify  a  man  of  ordinary 
prudence,  not  necessarily  a  skilled  miner,  in  the  ex- 
penditure of  his  time  and  money  in  the  development 
of  the  property.*^ 

44  Wilson  V.  Harnette,  32  Colo.  172,  75  Pac.  395,  396. 

45  Tarn  V.  Story,  21  L.  D.  440. 

46  Burke  v.  McDonald,  2  Idaho,  1022,  3  Idaho,  296,  29  Pac.  98,  101. 

47  Text  quoted,  Chrisman  v.  Miller,  197  U.  S.  313,  322,  25  Sup.  Ct. 
Eep.  468,  49  L.  ed.  790.  Text  cited  and  approved,  Steele  v.  Tanana 
Mines  R.  Co.,  148  Fed.  678,  680.  Section  commented  on  and  criticised, 
Ambergris  Mining  Co.  v.  Day,  12  Idaho,  108,  85  Pac.  109,  113;  McShane 
V.  Kenkle,  18  Mont.  208,  56  Am.  St.  Rep.  578,  44  Pac.  979,  981,  33 
L.  R.  A.  851;  Bonner  v.  Meikle,  82  Fed.  697,  703,  19  Morr.  Min.  Rep.  83; 
Shoshone  M.  Co.  v.  Rutter,  87  Fed.  801,  808,  31  C.  C.  A.  223,  19  Morr. 
Min.  Rep.  356;  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037,  1042, 
19  Morr.  Min.  Rep.  650;  Muldrick  v.  Brown,  37  Or.  185,  61  Pac.  428,  430; 
Michie  v.  Gothbcrg,  30  L.  D.  407;  Cascadin  v.  Bartolis,  146  Fed.  739,  741, 
77  C.  C.  A.  496;   S.  C,  second  appeal,  162  Fed.  267,  89  C.  C.  A.  247; 


§  336  THE  DISCOVERY.  774 

To  constitute  a  valid  discovery  upon  a  lode  mining 
claim  for  which  a  patent  is  sought  there  must  be  actu- 
ally and  physically  exposed  within  the  limits  thereof 
a  vein  or  lode  of  mineral-bearing  rock  in  place  pos- 
sessing in  and  of  itself  a  present  or  prospective  value 
for  mining  purposes.*^ 

In  cases  of  surface  placer  deposits  and  veins  or  lodes 
with  a  visible  outcrop,  the  embarrassments  surround- 
ing a  locator  in  establishing  a  sufficient  discovery  are 
not  as  serious  as  they  are  in  cases  of  deposits  covered 
with  overburden,  or  where,  by  reason  of  their  nature 
and  origin,  surface  indications  or  exposures  are  in- 
frequent, if  not  entirely  wanting.  Actual  discovery  at 
the  surface  is  impracticable  in  many  cases.  In  some 
localities  experience  has  taught  the  miner  that  certain  v 
surface  conditions,  such  as  what  the  miners  term 
'^ blossom" — a  local  discoloration  of  the  rocks  result- 
ing from  oxidation,  or  seams  to  some  extent  mineral- 
ized— will,  if  followed,  lead  the  prospector  to  mer- 
chantable ore,  and  justify  location.  In  such  a  district 
where  it  has  been  demonstrated  that  there  is  a  connec- 
tion between  these  surface  exposures  and  ore  beneath, 
the  courts  have  held  that  a  location  on  such  an  ex- 
posure in  the  district  is  sufficient  to  authorize  a  loca- 
tion. 

In  Shoshone  M.  Co.  v.  Butter"  the  circuit  court  of 
appeals  for  the  ninth  circuit  said: — 

The  discovery  of  seams  containing  mineral-bear- 
ing earth  and  rock,  which  were  discovered  before 

Lange  v.  Robinson,  148  Fed.  799,  803,  79  C.  C.  A.  1;  Charlton  v.  Kelly, 
156  Fed.  433,  437,  84  C.  C.  A.  295,  13  Ann.  Cas.  518;  King  Solomon 
Tunnel  Co.  v.  Mary  Verna  M.  Co.,  22  Colo.  App.  52^8,  127  Pac.  129,  133. 

48  East  Tintic  Cons.  M.  Co.,  40  L,  D.  271.  Rehearing  denied,  41 
L.  D.  255.  See,  also.  Rough  Rider  et  al.  Lodes,  41  L.  D.  242;  rehearing 
denied,  41  L.  D.  255;  Jefferson-Montana  Copper  Mines  Co.,  41  L.  D.  320. 

«  87  Fed.  801,  807,  31  C.  C.  A.  223,  19  Morr.  Min.  Rep.  356. 


775  WHAT  CONSTITUTES  A  VALID  DISCOVERT.  §  336 

the  location  was  made,  were  similar  in  tlieir  charac- 
ter to  the  seams  or  veins  of  mineral  matter  that  had 
induced  other  miners  to  locate  claims  in  the  same 
district,  which,  by  continued  developments  thereon, 
were  found  to  be  a  part  of  a  well-defined  lode  or 
vein  containing  ore  of  great  value.  The  discovery 
made  at  the  time  of  the  Kirby  location  was  there- 
fore such  as  to  justify  a  belief  as  to  the  existence 
of  such  a  lode  or  vein  within  the  limits  of  the  ground 
located/" 

The  supreme  court  of  Idaho,  in  a  case  involving  an 
ore  occurrence  similar  to  that  considered  in  Shoshone 
M.  Co.  V.  Rutter,  expressed  the  following  views: — 

If  a  miner  has  discovered  certain  mineral  indica- 
tions which  he  has  followed  up  with  the  result  that 
a  rich  and  valuable  ore  body  has  been  developed 
therefrom,  it  seems  clear  that  another  miner  finding 
similar  indications  and  conditions  on  contiguous 
ground  or  in  the  immediate  vicinity  would  be  in  a 
measure  justified  in  following  up  these  evidences 
with  reasonable  expectation  of  finding  mineral  de- 
posits, and  this  is  true  even  though  the  indications, 
rock  and  deposits  found  are  such  as  the  expert  scien- 
tist, geologist  and  mineralogist  in  their  finest  theories 
tell  him  are  not  evidence  of  mineral  deposits  or  even 
that  they  are  evidences  of  the  entire  absence  of  min- 
eral." 

The  rule  announced  in  these  cases  has  been  applied 
by  analogy  to  what  is  known  as  "muck  discoveries" 
in  the  Alaska  placer  regions.     The  "pay-streak"  in 

50  See,  also,  Hayes  v.  Lavagnino,  17  Utah,  185,  53  Pac.  1029,  1033,  19 
Morr.  Min.  Rep.  485.  This  rule  was  followed  in  Columbia  Copper  M.  Co. 
V.  Duchess  M.  M.  &  S.  Co.,  13  Wyo.  244,  79  Pac.  385,  38(5. 

61  Ambergris  Min.  Co.  v.  Day,  12  Idaho,  108,  85  Pac.  109,  111.  See 
East  Tintic  Cons.  M.  Co.,  40  L.  D.  271,  where  an  attempt  to  apply  this 
rule  failed  for  reason  that  it  had  not  been  demonstrated  in  that  district 
that  there  was  any  connection  between  the  surface  indications  relied  upon 
and  the  ore  underneath.  See,  also,  other  cases  cited  under  note  48, 
supra. 


§  336  THE  DISCOVERT.  776 , 

many  cases  is  covered  with  detrital  material,  and  the 
only  indication  of  the  existence  of  the  placer  deposits 
below  which  are  found  in  ancient  stream  channels  are 
the  "colors"  obtained  from  the  surface  overburden." 

These  decisions  show  a  marked  liberality  when  com- 
pared with  the  rulings  of  the  California  courts  in  the 
case  of  oil  placers.  As  a  rule,  the  only  appearance  at 
the  surface  indicating  the  existence  of  oil  below  is 
occasional  "oil  seepages."  These,  as  we  have  hereto- 
fore shown,  are  held  not  to  be  sufficient  discoveries  on 
which  to  predicate  locations.''^  To  relieve  the  diligent 
locator  from  the  embarrassments  flowing  from  a  lack 
of  a  technical  discovery,  the  supreme  court  of  Califor- 
nia has  equitably  extended  the  doctrine  of  pedis  pos- 
sessio  so  as  to  protect  the  entire  location  from  invasion 
by  hostile  locators  so  long  as  the  claimant  is  in  pos-  ' 
session  and  is  actually  engaged  in  a  search  for  oil." 

Another  class  of  deposits  of  large  commercial  im- 
portance are  the  copper  sulphides,  also  called  in  some 
localities  "porphyry  coppers."  These  consist,  gen- 
erally speaking,  of  zones  or  belts  of  copper  sulphide 
formed  by  secondary  enrichment.  Originally  the  en- 
tire mass  was  impregnated  with  copper  solution.  A 
process  of  natural  leaching  has  concentrated  the  min- 
eral in  horizons,  so  that  at  a  distance  below  the  sur- 
face the  deposits  are  commercially  profitable.  The 
overburden  or  "capping,"  as  it  is  colloquially  called, 

62  Lange  V.  Eobinson,  148  Fed.  799,  803,  79  C.  C.  A.  1;  Charlton  v. 
Kelly,  156  Fed.  433,  436,  84  C.  C.  A.  295,  13  Ann.  Cas.  518. 

62a  See,  also.  Dean  v,  Omaha-Wyoming  Oil  Co.  (Wyo.),  128  Pac  881 
884.  ■        ' 

53  Miller  V.  Chrisman,  140  Cal.  440,  98  Am.  St.  Rep.  63,  73  Pac.  1083, 
1085,  74  Pac.  444;  Weed  v.  Snook,  144  Cal.  439,  77  Pac.  1023,  1025; 
Merced  Oil  Co.  v.  Patterson,  153  Cal.  624,  96  Pac.  90.  See,  also,  Whiting 
V.  Straup,  17  Wyo.  1,  129  Am.  St.  Rep.  1093,  95  Pac.  849,  855;  Phillips 
V.  Brill,  17  Wyo.  26,  95  Pac.  856,  859. 


777  WHAT  CONSTITUTES  A   VALID  DISCOVERT.  §  336 

is  as  a  rule  practically  barren,  constituting  the  leached 
rock.  Technical  discoveries  can  only  be  made  through 
drilling,  as  in  the  case  of  oil.  No  reported  litigation 
has  arisen  in  the  courts  as  to  these  deposits  over  the 
questions  here  discussed,  but  the  land  department  as 
a  rule  requires  a  demonstration  of  ore  bearing  quality 
of  the  deposit,  by  means  of  shafts  or  tunnels  or  drill 
holes  penetrating  the  ore.''"' 

In  determining  the  sufficiency  of  a  given  discovery, 
the  land  department  considers  the  element  of  good 
faith  as  an  important  factor.  It  cannot  be  denied  that 
this  department  has  recently  assumed  a  somewhat 
rigid  attitude  in  cases  of  the  nonmetallic  deposits  of 
large  commercial  importance  such  as  oil,  phosphates, 
and  potash,  owing  to  the  tendency  of  combinations  to 
absorb  large  areas  of  these  products.  The  proposed 
conservation  measures  discussed  in  a  previous  sec- 
tion," if  adopted  by  congress,  will,  however,  place  this 
character  of  deposits  in  a  category  by  themselves,  to 
be  dealt  with  by  methods  radically  different  from  those 
now  in  force. 

With  reference  to  lodes  and  veins,  Judge  Hawley's 
definition  seems  to  answer  all  practical  purposes: — 
When  the  locator  finds  rock  in  place  containing 
mineral,  he  has  made  a  discovery  within  the  mean- 
ing of  the  statute,  whether  the  earth  or  rock  is  rich 
or  poor,  whether  it  assays  high  or  low.  It  is  the 
finding  of  the  mineral  in  the  rock  in  place,  as  dis- 
tinguished from  float  rock,  that  constitutes  the  dis- 
covery and  warrants  the  prospector  in  making  a 
location  of  a  mining  claim." 

63a  See  cases  cited  under  note  48,  supra. 

64  §  200. 

65  Book  V.  Justice  M.  Co.,  58  Fed.  106,  120,  17  Morr.  Min.  Bep.  617; 
Shoshone  M.  Co.  v.  Rutter,  87  Fed.  801,  807,  31  C.  C.  A.  223,  19  Morr. 
Min.  Rep.  356. 

The  question  of  "discovery"  will  be  found  discussed  to  a  limited  extent 


§  337  THE   DISCOVEET.  778 

§  337.    Where  such  discovery  must  be  made. — It  is 

almost  unnecessary  to  repeat  what  we  have  hereto- 
fore said,  that  title  to  a  mining  claim  can  only  be  in- 
itiated by  discovery  upon  the  unappropriated  lands  of 
the  government.^®  No  rights  are  acquired  by  an  entry 
within  the  surface  lines  of  patented  lands,"  or  other 
lands  which  are  withdrawn  from  the  body  of  the  public 
domain.^^ 

The  discovery  must  be  made  within  the  limits  of  the 
location  as  it  is  ultimately  marked  upon  the  ground." 

in  the  following  cases,  not  heretofore  cited:  Southern  Cross  M.  Co.  v. 
Europa  M.  Co.,  15  Nev.  383,  385;  Territory  v,  McKey,  8  Mont.  168,  19 
Pac.  395,  396;  Davidson  v.  Bordeaux,  15  Mont.  245,  38  Pac.  1075,  1076; 
Golden  Terra  M.  Co.  v.  Mahler,  4  Morr.  Min.  Rep.  390,  4  Pac.  C.  L.  J. 
405;  United  States  v.  King,  9  Mont.  75,  22  Pac.  498. 

56  Sands  v.  Cruikshank,  15   S.  D.   142,  87  N.  W.  589;   McPherson  v." 
Julius,  17  S.  D.  98,  95  N.  W.  428,  435;   Garabaldi  v.  Grillo,  17   Cal. 
App.  540,  120  Pac.  425,  426. 

57  Moyle  V.  Bullene,  7  Colo.  App.  308,  44  Pac.  69,  71;  Golden  Terra 
M.  Co.  V.  Mahler,  4  Morr.  Min.  Rep.  390,  4  Pac.  C.  L.  J.  405;  Brewster 
V.  Shoemaker,  28  Colo.  176,  89  Am.  St.  Rep.  188,  63  Pac.  309,  310,  53 
L.  R.  A.  793,  21  Morr.  Min.  Rep,  155;  Kirk  v.  Meldrum,  28  Colo.  453, 
65  Pac.  633,  635,  21  Morr.  Min.  Rep.  393. 

58  Michael  v.  Mills,  22  Colo.  439,  45  Pac.  429,  430;  Armstrong  v. 
Lower,  6  Colo.  393.  See,  ante,  §  322;  Branagan  v.  Dulaney,  2  L.  D.  744; 
Winter  Lode,  22  L.  D.  362. 

59  Gwillim  V.  Donnellan,  115  U.  S.  45,  50,  5  Sup.  Ct.  Rep.  1110,  29  L. 
ed.  348,  15  Morr.  Min.  Rep.  482;  Larkin  v.  Upton,  144  U.  S.  19,  23,  12 
Sup.  Ct.  Rep.  614,  36  L.  ed.  330,  17  Morr.  Min.  Rep.  465;  Upton  v. 
Larkin,  7  Mont.  449,  17  Pac.  728,  731,  15  Morr.  Min.  Rep.  404;  S.  C,  5 
Mont.  600,  6  Pac.  66,  68;  Cheesman  v.  Shreeve,  40  Fed.  787,  790,  17 
Morr.  Min.  Rep.  260;  Michael  v.  Mills,  22  Colo.  439,  45  Pac.  429:  Girard 
V.  Carson,  22  Colo.  345,  44  Pac.  508,  18  Morr.  Min.  Rep.  346;  Dean  v. 
Omaha- Wyoming  Oil  Co.  (Wyo.),  128  Pac.  881,  883. 

A  rather  severe  application  of  this  rule  is  found  in  the  case  of  Waskey 
V.  Hammer,  170  Fed.  31,  35,  95  C.  C.  A.  305.  Waskey  made  a  valid 
discovery  at  a  time  when  he  was  a  qualified  locator.  His  location  was 
excessive.  On  discovering  this  he  drew  in  his  lines  and  excluded  hia 
discovery  point.  In  the  meanwhile  he  became  a  deputy  mineral  sur- 
veyor, then  made  a  new  discovery  within  the  limits  of  his  claim.  But 
being  disqualified  at  that  time  from  locating,  his  new   discovery  could 


779  WHERE   DISCOVERY    MUST   BE   MADE.  §  337 

A  location  based  upon  a  discovery  made  within 
the  limits  of  another  existing  and  valid  location  is 
void.«° 

It  is,  however,  essential  that  the  senior  locator  make 
timely  assertion  of  his  rights  by  adversing  the  ap- 
plication of  the  junior  locator,  else  he  is  barred  from 
afterward  charging  that  the  claimed  discovers-  of  the 

not  avail  him  and  he  lost  his  claim.  The  supreme  court  of  the  United 
States  affirmed  the  ruling.  223  U.  S.  85,  90,  32  Sup.  Ct.  Rep.  187,  56 
L.  ed.  359. 

60  Belk  V.  Meagher,  104  U.  S.  279,  284,  26  L.  ed.  735,  1  Morr.  Min. 
Rep.  510;  Farrell  v.  Lockhart,  210  U.  S.  142,  146,  28  Sup.  Ct.  Kep.  681, 
52  L.  ed.  994,  16  L.  R.  A.,  N.  S.,  162   (qualifying  Lavagnino  v.  Uhlig, 
198  U.  S.  443,  453,  49  L.  ed.  1123,  25  Sup.  Ct.  Rep.  716)  ;   Swanson  v. 
Sears,  224  U.  S.  180,  32  Sup.  Ct.  Rep.  455,  56  L.  ed.  221;  affirming  Swan- 
son  V.  Kettler,  17  Idaho,  321,  105  Pac.  1059,  1065;   Brown  v.  Gurney, 
201  U.  S.  184,  191,  26  Sup.  Ct.  Rep.  509,  50  L.  ed.  717;  affirming  Gurney  v. 
Brown,  32  Colo.  472,  77  Pac.  357,  359;  Peoria  &  Colorado  M.  &  M.  Co.  v. 
Turner,  20  Colo.  App.  474,  79  Pac.  915,  917;  Hoban  v.  Boyer,  37  Colo. 
185,  85  Pac.  837;  Moffatt  v.  Blue  River  Gold  Ex.  Co.,  33  Colo.  142,  80 
Pac.  139,  140;  Sullivan  v.  Sharp,  33  Colo.  346,  80  Pac.  1054;  Lockhart 
V.  Farrell,  31  Utah,  155,  86  Pac.  1077,  1078;  Sierra  Blanca  M.  &  R.  Co. 
v.  Winchell,  35  Colo.  13,  83  Pac.  628;  Moorhead  v.  Erie  M.  &  M.  Co.,  43 
Colo.  408,  96  Pac.  253,  255;   Ambergris  M.  Co.  v.  Day,  12  Idaho,  108, 
85  Pac.  109,  113;  Swanson  v.  Kettler,  17  Idaho,  321,  105  Pac.  1059,  1062; 
S.  C,  on  rehearing,  105  Pac.  1065 ;  Snowy  Peak  M.  Co.  v.  Tamarack  & 
C.  M.  Co.,  17  Idaho,  630,  107  Pac.  60,  61;  Bergquist  v.  West  Virginia 
W.  Copper  Co.,  18  Wyo.  234,  106  Pac.  673,  682;   Helena  G.  &  I.  Co.  v. 
Baggaley,  34  Mont.  464,  87  Pac.  455,  459 ;  Tiggeman  v.  Mrzlak,  40  Mont. 
19,  105  Pac.  77,  81;  Street  v.  Delta  M.  Co.,  42  Mont.  371,  112  Pac.  701, 
704;   Tuolumne  Cons.  M.  Co.  v.  Maier,  134  Cal.  583,  66  Pac.  863,  864, 
21  Morr.  Min.  Rep.  678;  McElligott  v.  Krogh,  151  Cal.  126,  90  Pac.  823, 
825;   McPherson  v.  Julius,  17  S.  D.  98,  95  N.  W.  428,  435;   Upton  v. 
Santa  Rita  M.  Co.,  14  N.  M.  96,  89  Pac.  275,  285 ;  Watson  v.  Mayberry, 
15  Utah,  265,  49  Pac.  479,  482;   Reynolds  v.  Pascoe,  24  Utah,  219,  66 
Pac.  1064,  1065;  Nash  v.  McNamara,  30  Nev.  114,  133  Am.  St.  Rep.  694, 
93  Pac.  405,  407,  16  L.  R.  A.,  N.  S.,  168;  Little  Pittsburgh  Cons.  v.  Aniie 
M.  Co.,  17  Fed.  57,  58,  5  McCrary,  298;  Erwin  v.  Perigo,  93  Fed.  608,  611, 
35  C.  C.  A.  482 ;  Crown  Point  M.  Co.  v.  Buck,  97  Fed.  462,  465,  38  C.  C.  A. 
278;  Malone  v.  Jackson,  137  Fed.  878,  880,  70  C.  C.  A.  216;  Becker  v. 
Long,  196  Fed.  721;  Branagan  v.  Dulaney,  2  L.  D.  744;  In  re  Williams,  20 
L.  D.  458;  Golden  Link  M.  L.  &  B.  Co.,  29  L.  D.  384. 


§  337  THE   DISCOVERY.  780 

junior  lode  applicant  is  in  fact  on  land  appropriated 
by  the  senior  location.^'^ 

Whether  such  a  location  would  or  could  in  any  event 
become  validated  if  the  senior  locator  should  abandon 
his  location  or  fail  to  perform  the  annual  work  render- 
ing the  senior  claim  subject  to  relocation  will  be  dis- 
cussed later.®^ 

K  a  senior  location  includes  the  apex  of  a  vein,  and 
is  so  located  that  it  has  extralateral  rights,  a  junior 
claimant  can  predicate  no  rights  upon  a  discovery 
made  upon  the  dip  of  such  vein  and  within  the  extra- 
lateral  rights  of  the  senior  location.^^  The  reason  for 
this  rule  is,  that  the  extralateral  portion  of  the  vein 
has  been  withdrawn  from  the  public  domain  to  the 
same  extent  as  that  portion  of  the  vein  within  the  sur-' 
face  boundaries.®* 

But  if  the  apex  has  not  been  appropriated  by  a  valid 
location,  or  if  it  has  been  so  appropriated  as  to  leave  an 
underground  segment  of  the  vein  unappropriated,  a 
discovery  of  such  unappropriated  segment  would  be 
sufficient,  except  as  against  one  subsequently  locating 
a  portion  of  the  apex  in  such  a  manner  as  to  include 
the  underground  segment  of  the  vein  within  the  extra- 
lateral  rights  of  his  claim.®^ 

We  are  not  to  be  understood  as  stating  that  the 
locator  of  such  an  unappropriated  segment  of  a  vein 
would  be  entitled  to  extralateral  rights.  That  ques- 
tion will  be  discussed  in  a  subsequent  chapter. 

61  American  Cons.  M.  &  M.  Co.  v.  De  Witt,  26  L.  D.  580;  Mitchell 
V.  Brovo,  27  L.  D.  40;  Stranger  Lode,  28  L.  D.  321. 

62  Post,  §  645a. 

63  Bunker  Hill  &  Sullivan  M.  &  C.  Co.  v.  Shoshone  M.  Co.,  33  L.  D. 
142. 

64  Golden  Link  M.  L.  Co.,  29  L.  D.  384. 

65  A7ite,  §  314;  post,  §  364;  and  see  Doe  v.  Waterloo  M.  Co.,  54  Fed. 
935,  937;  Parrot  Silver  &  Copper  Co.  v.  Heinze,  25  Mont.  139,  87  Am. 
St.  Rep.  386,  64  Pac.  326,  328,  53  L.  E.  A.  491,  21  Morr.  Min.  Rep.  232, 


781  WHERE   DISCOVERY    MUST   BE   MADE.  §  337 

It  is  no  proof  of  discovery  within  the  limits  of  a  loca- 
tion that  a  vein  discovered  in  another  location  may 
penetrate  the  ground  sought  to  be  located,  where  there 
is  no  outcrop  in  the  latter,  and  no  physical  evidence  of 
the  existence  of  the  vein/" 

Any  portion  of  the  apex  on  the  course,  or  strike,  of 
the  vein  found  within  the  limits  of  a  claim  is  sufficient 
discoveiy  to  entitle  the  locator  to  obtain  title.®^ 

It  has  been  held  that  where  a  vein  has  been  discov- 
ered far  below  the  surface,  a  valid  location  can  be 
made  by  marking  the  boundary  on  the  surface  so  as  to 
include  the  place  at  which  the  vein,  if  continued  to  the 
surface,  would  be  disclosed,"®  in  the  absence  of  some 
proof  that  the  actual  position  of  the  apex  is  outside  of 
the  claim  as  located,  and  the  location  itself  would  be 
subject  to  the  extralateral  right  of  a  subsequent  locator 
covering  the  apex  if  it  was  subsequently  discovered 
outside  of  the  limits  of  the  prior  location. 

In  the  case  of  Reynolds  v.  Pascoe,"®  the  supreme  court 

of  Utah  said : — 

The  same  discovery  point  cannot  be  used  for  the 
location  of  two  or  more  claims  on  the  public  domain. 

In  this  case  B.  located  a  mining  claim  called  the 
Chief  running  north  and  south;  a  few  days  later  he 

66  Michael  v.  Mills,  22  Colo.  439,  45  Pac.  429,  430 ;  Silver  Jennie  Eode, 
7  L.  D.  6. 

67  Larkin  v.  Upton,  144  U.  S.  19,  23,  12  Sup.  Ct.  Rep.  614,  36  L.  ed. 
330,  17  Morr.  Mxn.  Rep.  465;  Upton  v.  Larkin,  5  Mont.  600,  6  Pac.  66,  67; 
S.  C,  7  Mont.  449,  17  Pac.  728,  732,  15  Morr.  Min.  Rep.  404;  Golden 
Terra  M.  Co.  v.  Mahler,  4  Morr.  Min.  Rep.  390,  4  Pac.  C.  L.  J.  405. 

68  Brewster  v.  Shoemaker,  28  Colo.  176,  89  Am.  St.  Rep.  188,  63  Pac. 
309,  310,  53  L.  R.  A.  793,  21  Morr.  Min.  Rep.  155.  But  on  the  question 
of  discovery  work  under  state  statutes  in  cases  of  this  kind,  the  supreme 
court  of  Montana  holds  that  it  must  be  done  from  the  surface,  indicating 
that  what  is  said  on  the  subject  in  Brewster  v.  Shoemaker  is  obiter. 
Butte  Consol.  M.  &  M.  Co.  v.  Barker,  35  Mont.  327,  89  Pac.  302,  303; 
S.  C,  on  rehearing,  90  Pac.  177. 

69  24  Utah,  219,  66  Pac.  1064,  1065. 


§  337  THE   DISCOVEEY.  782 

located  the  Ada,  placing  his  lines  across  the  Chief. 
The  discovery  monuments  of  both  claims  were  where 
the  vein  in  the  Chief  and  the  vein  in  the  Ada  crossed. 
The  Ada  discovery  was  within  the  limits  of  the  Chief. 
All  work  done  was  within  the  same  limits.  Subse- 
quently a  claim  called  Oregon  No.  2  was  located  ad- 
versely to  the  two  prior  locations  and  conflicting  with 
the  Ada.  B.  defended,  setting  up  title  to  the  Ada.  The 
contention  was  successfully  made  that  the  Ada  was  in- 
valid because  its  discovery  was  within  the  limits  of  the 
Chief,  a  prior  location.  Manifestly  both  the  Ada  and 
Chief  could  not  have  been  valid. 

In  the  case  of  Poplar  Consolidated  Quartz  Mine  " 
there  was  a  discovery  in  a  discovery  shaft  bisecting 
a  common  end-line  of  two  lode  claims,  located  on  the  ^ 
same  day  by  two  different  locators.  Bull  and  Braden. 
Braden  transferred  his  claim  to  Bull,  who  in  turn 
transferred  both  to  Bigelow,  who  applied  for  patent. 
The  discovery  shaft  was  sixty  feet  deep,  and  developed 
a  ledge  from  six  to  ten  feet  in  thickness.  The  secretary 
of  the  interior  decided  as  follows : — 

There  was  but  one  discovery  upon  which  both 
these  locations  were  made.  Both  Bull  and  Braden 
may  have  discovered  the  vein  or  lode,  but  each  could 
not  claim  the  discovery  as  his  own.  It  was  one  dis- 
covery made  by  two  men  and  only  entitled  the  two  or 
either  of  them  to  make  one  location.  If  the  law  be 
so  construed  as  to  allow  two  locations  in  a  case  like 
this,  it  would  also  have  to  uphold  that  one  discovery 
would  entitle  the  discoverer  to  make  four  locations, 
placing  one-fourth  of  the  discovery  to  the  credit  of 
each.  The  law  is  not  susceptible  of  any  such  con- 
struction. A  discovery  is  a  whole  and  may  not  be 
divided  and  parcelled  out  among  the  discoverers. 

TO  16  L.  D.  1. 


783  WHERE   DISCOVERY    MUST   BE    MADE.  §  337 

The  language  employed  is  somewhat  extravagant. 
It  would  be  impossible  to  mark  off  four  lode  locations, 
including  a  common  discovery  shaft,  without  such  a 
surface  conflict  as  would  invalidate  at  least  two  of 
them,  under  the  doctrine  of  the  Utah  case  supra. 

If  we  assume  that  a  part  of  the  apex  was  disclosed  in 
each  claim,  we  do  not  see  why  there  could  not  be  two 
locations,  as  there  would  then  be  practically  two  dis- 
coveries. Any  part  of  the  apex  on  the  course  of  the 
vein  found  within  a  claim  justifies  a  location.^^  As  was 
said  by  the  supreme  court  of  the  United  States : — 

Indeed,  it  would  seem  from  some  of  the  testi- 
mony that  the  course  or  strike  of  this  vein  was 
not  exactly  along  the  boundary  line  between  the 
Comanche  and  the  Shannon,  but  varying  somewhat 
therefrom;  hence,  the  apex  in  its  full  width  and  with 
some  ]Dortions  of  its  length  might  be  found  in  each 
claim  and  so  discovered  justify  the  discoverer  in 
obtaining  title  to  each." 

In  the  case  of  McKinstry  v.  Clark,"  the  trial  court 
charged  the  jury  in  effect  that  a  party  claiming  two 
locations  founded  on  one  discovery  had  a  right  to  make 
one  of  them,  and  the  burden  of  proof  was  on  his  ad- 
versary to  show  which  one  was  first  located.  There  is 
no  adequate  statement  of  facts  disclosing  the  situation. 
The  supreme  court  of  Montana  reversed  the  case,  as- 
signing as  one  of  the  reasons  error  of  the  trial  court  in 
instructing  the  jury  as  to  the  burden  of  proof.  The 
instructions  generally  were  conflicting  and  misleading. 
The  point  here  under  discussion  was  not  decided. 

71  Ante,  §337;  post,  §  364. 

T2  Larkin  v.  Upton,  144  U.  S.  19,  23,  12  Sup.  Ct.  Rep.  614,  36  L.  ed. 
3B0.  See,  also,  Tiggeman  v.  Mrzlak,  40  Mont.  19,  105  Pac.  77,  81; 
Healey  v.  Rupp,  28  Colo.  102,  63  Pac.  319,  21  Morr.  Min.  Kep.  117. 

"  4  Mont.  370,  1  Pac.  759,  761. 


§  338  THE   DISCOVERY.  784 

Where  the  state  laws  require  the  sinking  of  a  dis- 
covery shaft  on  each  claim  as  a  part  of  the  location 
work,  a  shaft  sunk  on  a  common  boundary  of  two  claims 
would  not  satisfy  the  law  as  to  either  unless  its  dimen- 
sions were  larger  than  is  customary.  It  is  possible 
that  some  of  the  courts  and  the  land  department  have 
confused  the  idea  of  the  discovery  with  the  discovery 
shaft.  This  suggestion  seems  to  have  occurred  to  Mr. 
Morrison,  who  says,  citing  the  above  cases  as  authority: 
''The  attempt  to  locate  two  full  claims  upon  one  dis- 
covery shaft  is  a  palpable  fraud,  "^*  emphasizing  the 
word  shaft  by  italics. 

If  we  eliminate  the  legal  necessity  of  a  discovery 
shaft  and  confine  ourselves  to  the  disclosure  of  a  vein, 
the  apex  of  which  crosses  a  common  boundary,  there  ■ 
is  no  reason  in  law  or  morals  why  two  locations  could 
not  be  made,  by  the  same  or  different  persons,  each 
based  upon  the  disclosure  of  a  part  of  the  apex  within 
each  claim. 

To  what  extent,  if  any,  the  rules  relating  to  discovery 
which  have  thus  far  been  formulated  as  to  lodes  may 
be  applied  by  analogy  to  placers,  will  be  discussed  in 
subsequent  sections.^*' 

§  338.  The  effect  of  the  loss  of  discovery  upon  the 
remainder  of  the  location. — As  the  discovered  lode 
must  lie  within  the  limits  of  a  location  which  is  made 
by  reason  of  it,  if  the  title  to  the  discovery  fails  and 
the  lode  is  not  shown  to  exist  in  other  portions  of  the 
claim,  the  title  to  the  location  fails. 

If  there  is  but  one  point  of  discovery  and  all  work- 
ings are  done  at  that  point,  a  patent  issued  to  another 

74  Morr.  Min.  Eights,  14th  ed.,  p.  53. 

74a  Post,  §  437.  As  to  boundary  line  discoveries  in  oil  placers,  see 
§  438a. 


785  EFFECT  OF  LOSS  OF  DISCOVERY.  §  338 

claimant  covering  the  place  of  working  restores  the 
remainder  of  the  ground  to  the  public  domain." 

Where,  however,  a  new  discovery  is  made  and  work 
prosecuted  thereon  in  good  faith,  loss  of  the  original 
discovery  point  by  patent  to  another  will  not  work  a 
loss  of  the  balance  of  the  claim.^^ 

Nor  will  a  prior  location  be  lost  where  a  junior 
locator  is  allowed  to  obtain,  without  contest,  a  patent 
which  includes  a  portion  of  the  prior  claim  containing 
the  discovery,  under  an  agreement  to  reconvey  such 
portion  to  the  prior  claimant  after  patent,  provided  the 
acts  of  the  parties  are  in  good  faith." 

Where  the  owner  of  location  applies  for  and  receives 
a  patent  himself  for  a  part  of  the  claim  which  includes 
his  original  discovery,  this  is  not  necessarily  an 
abandonment  of  the  other  part,  where  it  appears  that 
the  lode  exists  in  the  excluded  part,  and  is  sub- 
sequently worked  on  by  the  owner.^^ 

A  patent  applicant,  however,  may  in  the  patent  pro- 
ceeding relinquish  a  part  of  his  claim  so  as  to  restore 
it  to  the  public  domain.'^' 

The  land  department  refuses  to  issue  a  patent  upon 
an  application  from  which  is  excepted  the  land  con- 

76  Gwillim  V.  Donnellan,  115  U.  S.  45,  50,  5  Sup.  Ct.  Eep.  1110,  29 
L.  ed.  348,  15  Morr.  Min.  Rep.  482;  Miller  v.  Girard,  3  Colo.  App.  278, 
33  Pac.  69;  Girard  v.  Carson,  22  Colo.  345,  44  Pac.  508,  18  Morr.  Miu. 
Rep.  346;  Upton  v.  Santa  Rita  M.  Co.,  14  N.  M.  96,  89  Pac.  275,  285; 
Miller  v.  Hamley,  31  Colo.  495,  74  Pac.  980,  982;  Indiana-Ne\-ada  M.  Co. 
V.  Gold  Hills  M.  &  M.  Co.  (Nev.),  126  Pac.  965,  967. 

76  Silver  City  G.  &  S.  M.  Co.  v.  Lowry,  19  Utah,  334,  57  Pac.  11,  13, 
20  Morr.  Min.  Rep.  55;  Bingham  Amalgamated  Copper  Co.  v.  Ute  C.  Co., 
181  Fed.  748,  750. 

77  Duxie  Lode,  27  L.  D.  88. 

78  Miller  v.  Hamley,  31  Colo.  495,  74  Pac.  980,  982;  Peoria  &  Colorado 
M.  &  M.  Co.  V.  Turner,  20  Colo.  App.  474,  79  Pac.  915,  918. 

79  Gurney  v.  Brown,  32  Colo.  472,  77  Pac.  357,  359;  Brown  v,  Gurney, 
201  U.  S.  184,  193,  26  Sup.  Ct.  Rep.  509,  50  L.  ed.  717. 

Lindley  on  M. — 50 


§  338  THE  DISCOVERT.  786 

taining  the  discovery  shaft  and  improvements,  where 
the  proof  fails  to  show  the  discovery  or  existence  of 
mineral  on  the  claim  as  applied  for.'° 

This  rule,  however,  in  so  far  as  it  involves  the  loss  of 
the  discovery  shaft,  is  said  to  be  limited  to  states  where 
statutes  are  in  force  requiring  the  sinking  of  discovery 
shafts  or  their  equivalents.^^ 

Where,  in  drawing  in  the  lines  of  a  claim  for  the 
purpose  of  casting  off  excess,  the  discovery  is  excluded, 
the  original  location  falls,  and  a  new  discovery  is  essen- 
tial to  maintain  the  integrity  of  the  location.*^ 

A  lode  claim  which  is  intersected  by  a  patented  mill- 
site  must  be  confined  to  that  part  which  contains  a 
discovery  shaft  and  improvements,^^  unless  a  valid  dis- 
covery of  the  same  vein  can  be  shown  upon  the  other 
part.** 

Such  showing  will  authorize  the  entry  of  such  re- 
mainder, as  in  such  case  it  is  not  restored  to  the  public 
domain.^^ 

And  the  applicant  may  be  permitted,  after  entry  at 
the  local  land  office,  and  prior  to  patent,  to  establish 
these  facts  by  supplemental  proof.'° 

The  rule  that  a  patent  may  not  be  issued  for  both 
parts  of  a  lode  claim  which  is  intersected  by  a  millsite 

80  In  re  J.  G.  Kennedy,  10  Copp's  L.  O.  150;  Antediluvian  Lode,  8 
L.  D.  602 ;  Independence  Lode,  9  L.  D.  571 ;  Lone  Dane  Lode,  10  L.  D. 
53;  In  re  Thomas  J.  Laney,  9  L.  D.  83;  Hidden  Treasure  Lode,  29  L. 
D.  156;  S.  C,  on  review,  29  L.  D.  315. 

81  Bingham  Amalgamated  Copper  Co.  v.  Ute  C.  Co.,  181  Fed.  748,  750. 

82  Waskey  v.  Hammer,  170  Fed.  31,  34,  95  C.  C.  A.  305;  affirmed,  223 
U.  S.  85,  32  Sup.  Ct.  Rep.  187,  56  L.  ed.  359. 

83  Andromeda  Lode,  13  L.  D.  146;  Mabel  Lode,  26  L.  D.  675. 

84  Paul  Jones  Lode,  31  L.  D.  359. 

85  In  re  Hagland,  on  review,  1  L.  D.  593;  Paul  Jones  Lode,  31  L.  D. 
359;  Perigo  v.  Erwin,  85  Fed.  904,  906,  19  Morr.  Min.  Rep.  269;  Erwin 
V.  Perigo,  93  Fed.  608,  612,  35  C.  C.  A.  482. 

86  Spur  Lode,  4  L.  D.  160. 


787  EFFECT  OF  LOSS  OF  DISCOVERT.  §  338 

docs  not  apply  to  a  lode  claim  which  is  intersected  by 
a  placer  claim." 

It  was  formerly  heW  that  if  a  lode  claim  is  inter- 
sected by  a  prior  lode  location,  both  parts  of  such  inter- 
sected claim  could  not  be  retained.  But  under  the 
recent  decisions  of  the  department  we  think  the  op- 
posite conclusion  would  be  reached.** 

The  supreme  court  of  Utah  has  held  that  where  the 
original  discovery  of  a  lode  claim  has  been  included 
within  the  patent  lines  of  a  junior  claim,  but  before 
the  issuance  of  such  patent  a  discovery  is  made  on  that 
portion  of  the  senior  location  not  included  within  the 
junior  claim,  such  senior  location  is  valid.®° 

The  supreme  court  of  California  has  attempted  to 
qualify  the  rule  announced  by  the  supreme  court  of 
the  United  States  in  Gwillim  v.  Donnellan,"  and  which 
has  been  followed  uniformly  by  the  land  department, 
in  a  case  where  the  discovery  and  workings  were  em- 
braced within  an  agricultural  patent,  the  mining 
locator  subsequently  acquiring  the  agricultural  title." 

The  court  evidently  strained  the  law  to  avoid  sanc- 
tioning what  it  deemed  an  injustice.  Work  done  on 
the  patented  agricultural  land,  if  it  had  a  manifest 
tendency  to  develop  that  part  of  the  location  excluded 

87  The  Vulcano  Lode  M.  Claim,  30  L.  D.  482, 

88  Silver  Queen  Lode,  16  L.  D.  186. 

89  Paul  Jones  Lode,  31  L.  D.  359;  Hidee  Gold  M.  Co.,  30  L.  D.  420; 
Alice  Lode  M.  Claim,  30  L.  D.  481.  See  Crown  Point  G.  M.  Co.  v.  Buck, 
97  Fed.  462,  465,  38  C.  C.  A.  278. 

90  Silver  City  G.  &  S.  M.  Co.  v.  Lowry,  19  Utah,  334,  57  Pac.  11,  13, 
20  Morr.  Min.  Kep.  55;  Tonopah  &  Salt  Lake  M.  Co.  v.  Tonopah  M.  Co., 
125  Fed.  408,  415;  Waskey  v.  Hammer,  170  Fed.  31,  35,  95  C.  C.  A,  305; 
Bingham  Amalgamated  Copper  Co.  v.  Ute  Copper  Co.,  181  Fed.  748,  749 . 
See  Paul  Jones  Lode,  28  L.  D.  120,  31  L.  D.  359. 

91  115  U.  S.  45,  50,  5  Sup.  Ct.  Rep.  1110,  29  L.  ed.  348,  15  Morr.  Min. 
Eep.  482. 

82  Richards  v.  Wolfling,  98  Cal.  195,  32  Pac.  971,  972. 


§  339  THE  DISCOVERY.  788 

from  the  agricultural  entry,  would  be  considered  in 
law  as  the  equivalent  of  work  done  within  the  limits  of 
the  claim.  But  a  discovery,  without  which  no  location 
possesses  any  potential  force  or  vitality,  once  passing 
by  patent  to  another,  can  no  more  be  used  as  the  basis 
of  acquiring  title  to  unpatented  lands,  although  held 
by  the  same  owner,  than  can  a  discovery  in  one  mining 
claim  be  used  as  the  basis  of  locating  another.  Cer- 
tainly, no  patent  could  ever  be  obtained  to  the  re- 
mainder of  the  mining  claim  upon  the  facts  shown  in 
the  California  case,  unless  other  discoveries  were  made 
within  such  remainder.  It  is  manifest  that  the  ruling 
of  the  supreme  court  of  California  is  opposed  to  the 
weight  of  authority.  Loss  of  discovery  results  in  loss 
of  location,  unless  a  new  discovery  is  made  within  the  v 
excluded  ground  prior  to  the  inception  of  intervening 
rights.  Such  new  discovery  will  save  the  remainder 
from  reverting  to  the  body  of  the  public  domain.^^ 

The  effect  of  a  conveyance  of  a  part  of  an  unpat- 
ented mining  location  upon  the  remainder  will  be  con- 
sidered  in  a  subsequent  section.®* 

§  339.  Extent  of  a  locator's  right  after  discovery 
and  prior  to  completion  of  location. — Discovery  is  but 
one  step  in  acquiring  title  to  a  mining  claim.  It  must 
be  followed  by  location.®' 

83  This  course  was  pursued  by  a  locator  who  made  an  excessive  loca- 
tion and  in  casting  oflF  the  excess  excluded  his  discovery.  He  subse- 
quently made  a  new  discovery  within  the  amended  limits,  but  in  the 
meanwhile,  having  become  disqualified  by  reason  of  being  appointed 
deputy  mineral  surveyor,  the  new  discovery  did  not  avail  him  and  he  lost 
his  property  to  a  relocator.  Waskey  v.  Hammer,  170  Fed.  31,  35,  95 
C.  C.  A.  305;  affirmed,  223  U.  S.  85,  32  Sup.  Ct.  Rep.  187,  56  L.  ed.  359. 

94  Post,  §  618b. 

85  Adams  v.  Crawford,  116  Cal.  495,  48  Pac.  488,  489. 


789    locator's  right  before  completion  of  location.    §  339 

When  a  prospector  has  made  such  a  discovery  as  will 
satisfy  the  law  and  form  the  basis  of  the  location,  he  is 
allowed,  in  most  of  the  states,  a  specified  time  in  which 
to  perform  the  remaining  acts  which  are  requisite  to 
perfect  the  location.  As  to  whether,  in  the  absence 
of  such  legislation  and  district  rules,  the  discoverer 
has  any  appreciable  time  within  which  to  mark  his 
boundaries  and  complete  his  location  is  a  subject  upon 
which  the  courts  differ.  The  supreme  court  of  Cali- 
fornia has  held  that  while  if  the  locator  be  on  the 
ground  actually  engaged  in  making  the  location,  an- 
other could  not  locate  over  him,  yet,  in  the  absence 
of  local  rules  authorizing  it,  no  time  is  allowed  to 
perfect  the  location;  that  until  it  is  actually  marked  on 
the  ground  the  claim  is  not  appropriated  so  as  to  pre- 
vent its  acquisition  by  a  subsequent  locator.^® 

This  rule  was  followed  by  the  supreme  court  of 
Oregon." 

The  supreme  court  of  New  Mexico  has  held  that 
under  the  laws  of  that  territory  such  a  perfected  notice 
of  location  as  will,  when  recorded,  fulfill  the  require- 
ments of  the  federal  statutes  must  be  posted  contem- 
poraneously with  discovery.^* 

The  circuit  court  of  appeals  for  the  ninth  circuit  was 
called  upon  to  determine  the  question  upon  the  same 
evidence  and  the  same  state  of  facts  arising  in  one  of 
the  California  cases,®®  and  that  tribunal  declined  to  ac- 
cept the  rule  announced  by  the  California  courts.     The 

86  Newbill  V.  Thurston,  65  Cal.  419,  4  Pac.  409,  410;  Pharis  v.  Mul- 
doon,  75  Cal.  284,  17  Pac.  70,  71,  15  Morr.  Min.  Eep.  348.  See  McClcary 
V.  Broaddus,  14  Cal.  App.  60,  111  Pac.  125,  127. 

8T  Patterson  v.  Tarbell,  26  Or.  29,  37  Pac.  76,  78.     See  post,  §  372. 

98  Deeney  v.  Mineral  Creek  M.  Co.,  11  N.  M.  279,  67  Pac.  724,  725,  22 
Morr.  Min.  Eep.  47. 

89  Newbill  V.  Thurston,  65  Cal.  419,  4  Pac.  409,  410. 


§  339  THE  DISCOVERY.  790 

court  of  appeals  held  that  after  a  discovery  and  posting 
a  notice  thereof  the  locator  had  a  reasonable  time 
in  which  to  complete  the  location;  what  was  a  reason- 
able time  would  depend  upon  the  facts  of  each  partic- 
ular case;  that  evidence  of  customs  prevalent  in  other 
localities  on  this  subject  might  be  received  for  the 
purpose  of  aiding  the  court  in  its  determination,  and 
that,  under  the  circumstances  of  that  case,  twenty  days 
was  a  reasonable  time.^°° 

The  doctrine  announced  by  the  circuit  court  of  ap- 
peals is  in  consonance  with  the  views  expressed  by  the 
supreme  courts  of  Nevada,^  Idaho,'  Montana,^  Utah,* 
and  Washington,"  and  accords  with  the  spirit  of  the 
law  as  interpreted  by  the  supreme  courts  of  Colorado,* 
South  Dakota,'  and  the  supreme  court  of  the  United 
States.® 

To  hold  that  the  miner,  as  soon  as  he  discovers  a 
lode,  must  immediately  stake  the  territory  which  he  is 
entitled  to  claim,  in  order  to  protect  it  from  invasion 

100  Doe  V.  Waterloo  M.  Co.,  70  Fed.  455,  459,  17  C.  C.  A.  190,  18  Morr. 
Min.  Rep.  265;  affirming  decision  of  Judge  Ross,  Doe  v.  Waterloo,  55 
Fed.  11. 

1  Golden  Fleece  M.  Co.  v.  Cable  Cons.  M.  Co.,  12  Nev.  312,  329;  Glee- 
son  V.  Martin  White  M.  Co.,  13  Nev.  442;  testimony  of  Chief  Justice 
Beatty,  Rep.  Pub.  Land  Com.  399;  Tonopah  &  Salt  Lake  M.  Co.  v.  Tono- 
pah  M.  Co.,  125  Fed.  389,  396. 

2  Burke  v.  McDonald,  2  Idaho,  646  (679),  33  Pac.  49,  50,  17  Morr. 
Min.  Rep.  325. 

3  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037,  1045,  19  Morr.  Min. 
Rep.  650. 

*  Brockbank  v.  Albion  M.  Co.,  29  Utah,  367,  81  Pac.  863. 

6  Union  M.  &  M.  Co.  v.  Leitch,  24  Wash.  585,  85  Am.  St.  Rep.  961,  64 
Pac,  829,  830. 

•  Murley  v.  Ennis,  2  Colo.  300;  Patterson  v.  Hitchcock,  3  Colo,  533. 
T  MarshaU  v.  Harney  Peak  Tin  M.  Co.,  1  S.  D.  350,  47  N,  W,  290,  293. 
8  Erhardt  v.  Boaro,  113  U,  S,  527,  535,  5  Sup,  Ct.  Rep,  56D,  28  L.  ed. 

1113,  15  Morr,  Min,  Rep.  472. 


791    locator's  right  before  completion  of  location.    §  339 

and  claims  of  otlier  persons,  would  be  an  unreasonable, 
if  not  impossible,  requirement." 

What  is  a  reasonable  time  for  the  completion  of 
the  location  depends  upon  the  nature  of  the  ground  to 
be  located,  the  means  of  properly  marking,  and  the 
ability  to  properly  ascertain  the  dimensions  and 
course,  or  strike,  of  the  vein." 

As  so  much  depends  upon  the  locator  determining  the 
position  of  his  vein  in  the  earth  and  the  course  of  its 
apex,  and  as  a  failure  to  make  his  location  and  estab- 
lish his  end-lines  as  the  law  contemplates  is  accom- 
panied with  such  serious  results,  it  would  seem  that 
congress  never  intended  to  compel  the  discoverer  to 
immediately  proceed  at  his  peril  with  the  marking  of 
his  boundaries.  The  posting  of  a  preliminary  notice, 
though  not  specially  authorized  by  statute,  should  be 
sufficient  to  protect  the  discoverer  for  a  reasonable 
time,  at  least,  within  which  he  might  determine  ap- 
proximately the  all-important  facts  upon  which  the 
value  of  his  property  to  a  great  degree  depends." 

What  is  a  reasonable  time  is  a  question  of  law  "  and 
depends  upon  the  circumstances  of  each  case.'^ 

In  states  or  localities  where  the  laws  or  district 
regulations  fix  a  given  time  within  which  certain  acts 
subsequent  to  the  discovery  are  required  to  be  per- 
formed, the  posting  of  a  preliminary  notice,  specifying 

9  Omar  v.  Soper,  11  Colo.  380,  7  Am.  St.  Eep.  246,  18  Pac.  443,  445, 
15  Morr.  Min.  Rep.  496;  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037, 
1045,  19  Morr.  Min.  Eep.  650. 

10  Doe  V.  Waterloo  M.  Co.,  70  Fed.  455,  460,  17  C.  C.  A.  190,  18  Morr. 
Min.  Rep.  265. 

11  Union  M.  &  M.  Co.  v.  Leitch,  24  Wash.  585,  85  Am.  St.  Eep.  961, 
64  Pac.  829,  830. 

12  Patterson  v.  Hitchcock,  3  Colo.  533,  540. 

13  Union  M.  &  M.  Co.  v.  Leitch,  24  Wash.  585,  85  Am.  St.  Eep.  961, 
64  Pac.  829,  830. 


§  339  THE  DISCOVERT.  793 

tlie  name  of  the  lode,  date  of  discovery,  and  tlie  in- 
tention to  locate  the  claim,  is  equivalent  to  actual  pos- 
session," and  no  adverse  rights  may  be  initiated  until 
after  the  lapse  of  that  period.^' 

Whenever  preliminary  work  is  required  to  define  and 
describe  the  claim  located,  the  first  discoverer  must  be 
protected  in  the  possession  of  the  claim  until  sufficient 
excavations  and  development  can  be  made  to  disclose 
whether  a  vein  or  deposit  of  such  richness  exists  as 
to  justify  the  work  to  extract  the  metal." 

Otherwise,  the  whole  purpose  of  allowing  the  free 
exploration  of  the  public  lands  for  the  precious  metals 
would  in  such  cases  be  defeated,  and  force  and  violence 
in  the  struggle  for  possession,  instead  of  previous  dis- 
coveiy,  would  determine  the  rights  of  the  claimants/' 

The  effect  of  this  rule  is  practically  to  reserve,  after 
the  discovery  and  during  the  statutory  period  allowed 
for  perfecting  the  claim,  a  surface  area  circular  in 
form,  the  radius  of  which  may  be  the  length  claimed  on 
the  discovered  lode,  within  which  area  the  location 
may  be  ultimately  made.  "The  locator  may  use  his 
discover}^  as  a  pivot,  and  move  his  lines,  at  least  in 

1*  Erhardt  v.  Boaro,  8  Fed.  692,  693,  2  McCrary,  141,  4  Morr.  Min. 
Eep.  432. 

15  Sierra  Blanca  M.  &  R.  Co.  v.  WincheU,  35  Colo.  13,  83  Pae.  628;  Fer- 
ris V.  McNally  (Mont.),  121  Pac.  889,  892;  Nash  v.  McNamara,  30  Nev. 
114,  133  Am.  St.  Rep.  694,  93  Pac.  405,  406,  16  L.  R.  A.,  N,  S.,  168; 
Farrell  v.  Lockhart,  210  U.  S.  142,  145,  28  Sup.  Ct.  Rep.  681,  52  L.  ed. 
994,  16  L.  R.  A.,  N,  S.,  162;  Moorhead  v.  Erie  M.  &  M.  Co.,  43  Colo. 
408,  96  Pac.  253,  255.  Question  mooted  but  not  decided  in  Bergquist  v. 
West  Virginia  &  Wyoming  Copper  Co.,  18  Wyo.  234,  106  Pac.  673,  683. 

16  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037,  1045,  19  Morr.  Min. 
Rep.  650;  Ferris  v.  McNally  (Mont.),  121  Pac.  889,  892. 

17  Erhardt  v.  Boaro,  113  U.  S.  527,  535,  5  Sup.  Ct.  Rep.  560,  28  L.  ed. 
1113,  15  Morr.  Min.  Rep.  472;  Marshall  v.  Harney  Peak  Tin  M.  Co.,  1 
S.  D.  350,  47  N.  W.  290,  293;  Omar  v.  Soper,  11  Colo.  380,  7  Am.  St. 
Rep.  246,  18  Pac.  443,  446,  15  Morr,  Min.  Rep.  496. 


793    locator's  right  before  completion  of  location.    §  339 

tlie  general  course  of  his  vein  given  in  his  notice,  so  as 
to  secure  the  full  benefit  of  his  discovery."'' 

Such  is  the  manifest  intent  of  the  rule.  This  was 
the  custom  under  the  act  of  1866.  The  miner  posted 
his  notice,  claiming  so  many  linear  feet  on  the  vein; 
and  under  the  law  as  then  interpreted,  prior  to  fixing 
the  situs  of  his  lode,  by  filing  a  diagram  for  patent  pur- 
poses, he  might  follow  the  vein  wheresoever  it  ran  to 
the  length  claimed.'* 

When  he  filed  his  diagram  and  inclosed  his  lode 
within  surface  bouiidaries,  his  right  to  pursue  the  vein 
on  its  course  ceased  where  it  passed  out  of  his  surface 
lines." 

Under  the  existing  state  of  the  law,  the  location  must 
be  marked  within  a  certain  period  of  time,  whereupon 
the  locator's  rights  become  definitely  fixed  and  con- 
fined, except  as  to  the  extralateral  right,  to  his  marked 
boundaries.  Until  this  is  done,  however,  and  within 
the  prescribed  periods,  his  right  to  be  protected  to  the 
extent  heretofore  stated  is  well  settled.^' 

If,  however,  he  marks  his  boundaries  indicating  the 
extent  of  the  location  without  waiting  for  the  time 
allowed  him,  and  other  locations  are  made,  guided  by 
the  boundaries  as  marked,  he  will  not  be  permitted  sub- 
sequently to  swing  his  location  so  as  to  include  the 
surface  of  the  intervening  locations." 

18  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037,  1046,  19  Morr.  Min. 
Rep.  650;  Helena  G.  &  I.  Co.  v.  Baggaley,  34  Mont.  464,  87  Pac.  455,  458. 
IS  Johnson  v.  Parks,  10  Cal.  447.     See  ante,  §  58. 

20  Ante,  §  60. 

21  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037,  1045,  19  Morr.  Min. 
Kep.  650;  Bramlett  v.  Flick,  23  Mont.  95,  57  Pac.  869,  20  Morr.  Min. 
Rep.  103;  Ferris  v.  McNaUy  (Mont.),  121  Pac.  889,  892;  Helena  Gold 
M.  Co.  V.  Baggaley,  34  Mont.  464,  87  Pac.  455,  458. 

22  Wiltsee  v.  King  of  Arizona  M.  &  M.  Co.,  7  Ariz.  95,  60  Pac.  896, 
898. 


§  339  THE   DISCOVERY.  794 

If  he  fails  to  comply  with  the  law  within  the  stat- 
utory period,  his  rights  would  thereafter  be  no  greater 
than  the  rights  of  one  in  possession  without  discovery. 
He  might  protect  his  pedis  possessio  against  forcible 
intrusion  and  hold  it  against  one  having  no  higher 
right  ;^^  but  he  would  be  a  mere  occupant  without  color 
of  title,  and  his  possession  must  yield  to  anyone  pos- 
sessing the  necessary  qualifications,  who  enters  peace- 
ably and  in  good  faith  for  the  purpose  of  perfecting  a 
valid  location." 

We  have  heretofore  said  that  no  adverse  rights  may 
be  initiated  until  after  the  lapse  of  the  period  allowed 
by  the  statute  to  perfect  the  location.  As  to  whether 
the  rights  of  intervening  locators  would  become  vali- 
dated by  the  lapse  of  the  period  and  failure  of  the  first , 
locator  to  perform  all  of  the  requisite  acts,  it  would 
seem  that  the  analogy  of  junior  locators  overlapping 
senior  claims  ^^  should  apply,  and  that  the  intervening 
location  should  be  void  ab  initio.  The  ground  would 
not  become  subject  to  location  until  the  lapse  of  the 
statutory  time,  no  rights  accruing  to  the  intervening 
locator  by  reason  of  the  premature  relocation. 

The  supreme  court  of  Montana  has  expressed  the 
view  that  if  the  senior  locator,  having  performed  the 
first  step  in  the  series,  neglects  to  perform  the  others, 
the  junior  locator  might  be  able  to  assert  his  rights. 
In  other  words,  in  the  opinion  of  the  court,  other  pros- 
pectors may  locate  within  the  area  during  tJie  period, 
and  upon  the  lapse  of  the  statutory  time  and  failure  of 

23  Grossman  v.  Pendery,  8  Fed.  693,  694,  2  McCrary,  139,  4  Morr.  Miii, 
Eep.  431;  Field  v.  Grey,  1  Ariz.  404,  25  Pac.  793,  794.  See  Cosmos 
Exploration  Co.  v.  Gray  Eagle  Oil  Co.,  112  Fed.  4,  14,  50  C.  C.  A.  79, 
21  Morr.  Min.  Rep.  633. 

24  See  ante,  "Occupancy  Without  Color  of  Title,"  §§  216-219;  Willc- 
ford  V.  Bell  (Cal.),  49  Pac.  6. 

26  A  full  discussion  of  this  question  will  be  found  post,  §  645a. 


795 


STATE  LAWS  REQUIRING  DEVELOPMENT  WORK. 


§343 


the  senior  locator  to  perform  all  the  required  acts,  the 
junior  location  would  be  valid,  the  failure  of  the  senior 
\o  comply  with  the  law  automatically  inuring  to  the 
benefit  of  the  junior  locator.^"' 

The  decision  in  this  case,  however,  was  based  upon 
the  opinion  of  the  supreme  court  of  the  United  States 
in  Lavagnino  v.  Uhlig,"  which,  however,  was  subse- 
quently overruled.^* 

We  think  the  great  weight  of  authority  is  in  favor 
of  the  doctrine  that  the  intervening  location  would  be 
absolutely  void.^' 


Article  IV. 


The  Discovert  Shaft  and  Its 
Equivalent. 


§  343.  State  legislation  requiring 
development  work  as  pre- 
requisite to  completion  of 
location. 

§  344.  Object  of  requirement  as 
to  development  ivork. 


§  345.  Eelationship  of  the  dis- 
covery to  the  discovery 
shaft. 

§  346.  Extent  of  development 
work. 


§  343.  State  legislation  requiring  development 
work  as  prerequisite  to  completion  of  location. — Of  the 
precious  metal-bearing  states,  California  and  Utah 
have  thus  far  enacted  no  laws  requiring  work  of  any 
character  to  be  performed  as  a  prerequisite  to  the 

2«  Helena  Gold  and  Iron  Co.  v.  Baggaley,  34  Mont.  464,  87  Pac.  455, 
459;  approved  in  the  later  case  of  Street  v.  Delta  M.  Co.,  42  Mont.  371, 
384,  112  Pac.  701,  705. 

27  198  U.  S.  453,  25  Sup.  Ct.  Eep.  716,  49  L.  ed.  1123. 

28  Farrell  v.  Lockhart,  210  U.  S.  142,  146,  28  Sup.  Ct.  Eep.  681,  52 
L.  ed.  994,  16  L.  E.  A.,  N.  S.,  162;  Swanson  v.  Sears,  224  U.  S.  180,  32 
Sup.  Ct.  Rep.  455,  56  L.  ed.  721.  For  comment  on  Helena-Baggaley  case 
see  Bergquist  v.  West  Virginia  W.  Copper  Co.,  18  Wyv/.  234,  106  Pac. 
673,  683. 

29  See  cases  cited  in  preceding  notes. 


§  343  THE  DISCOVERY   SHAFT  AND   ITS  EQUIVALENT.  796 

completion  of  a  location;  therefore,  as  to  these  states 
this  article  is  inapplicable. 

The  states  and  territories  hereinafter  enumerated, 
however,  have  supplemented  federal  legislation  by  re- 
quiring that  certain  preliminary  development  work  in 
the  nature  of  a  discovery  shaft,  or  its  equivalent,  shall 
be  performed  within  a  specified  time  as  a  condition 
precedent  to  the  completion  of  a  lode  location.  This 
legislation  has  been  held  to  be  valid.^° 

As  these  state  statutes  are  frequently  important 
factors  necessary  to  be  considered  in  construing  and 
applying  decisions  of  the  state  courts,  we  will  present 
an  outline  of  the  provisions  found  in  the  several  states 
and  territories  upon  this  subject,  taking  the  state  of 
Colorado  as  a  basis  of  comparison. 

Colorado.— The  laws  of  Colorado  require  the  filing 
for  record  of  a  location  certificate  within  three  months 
from  the  date  of  discovery.^^ 

Prior  to  the  expiration  of  this  time,  and  within  sixty 
days  from  the  time  of  uncovering  or  disclosing  the 
lode,''  the  discoverer  must  sink  a  discovery  shaft  upon 
the  lode  to  the  depth  of  at  least  ten  feet  from  the  lowest 
part  of  the  rim  of  the  shaft  at  the  surface,  or  deeper  if 
necessary,  to  show  a  well-defined  crevice.^* 

so  Ante,  §  250  (15)  ;  Northmore  v.  Simmons,  97  Fed.  386,  387,  38  C. 
C.  A.  211,  20  Morr.  Min.  Rep.  128;  Sissons  v.  Sommers,  24  Nev.  379,  77 
Am.  St.  Rep.  815,  55  Pac.  829,  830;  Sanders  v.  Noble,  22  Mont.  110,  55 
Pac.  1037,  1039,  19  Morr.  Min.  Rep.  650;  Purdum  v.  Laddin,  23  Mont. 
387,  59  Pac.  153,  154;  Butte  Consol.  M.  Co.  v.  Barker,  35  Mont.  327,  89 
Pac.  302,  303,  90  Pac.  177.  And  see  Erhardt  v.  Boaro,  113  U.  S.  527, 
535,  5  Sup.  Ct.  Rep.  560,  28  L.  ed.  1113,  15  Morr.  Min.  Rep.  472;  Lock- 
hart  V.  Johnson,  181  U.  S.  516,  526,  21  Sup.  Ct.  Rep.  665,  45  L.  ed.  979. 
But  see  Beals  v.  Cone,  27  Colo.  473,  83  Am.  St.  Rep.  92,  02  Pac.  948,  958, 
20  Morr.  Min.  Rep.  591. 

31  Mills'  Annot.  Stats.,  §  3150;  Rev.  Stats.  1908,  §  4194. 

32  Mills'  Annot.  Stats.,  §  3155;  Rev.  Stats.  1908,  §  4200. 

33  Mills'  Annot.  Stats.,  §  3152;  Rev.  Stats.  1908,  §  4197. 


797  STATE  LAWS  REQUIRING  DEVELOPMENT  WORK.  §  343 

The  word  ** crevice,"  as  here  used,  clearly  means  a 
mineral-bearing  vein." 

The  discovery  of  some  other  vein  within  the  limits 
of  the  claim  cannot  supply  the  absence  of  tlie  one  re- 
quired to  be  exposed  in  the  discovery  shaft.'^ 

Any  open  cut,  crosscut,  or  tunnel  which  shall  cut  a 
lode  at  the  depth  of  ten  feet  below  the  surface,  or  an 
adit  of  at  least  ten  feet  in,  along  the  lode  from  the  point 
where  the  lode  may  be  in  any  manner  discovered,  is 
equivalent  to  the  discovery  shaft.'* 

This  statute  is  held  to  be  mandatory,  and  unless  com- 
plied with,  the  ground  is  subject  to  relocation." 

Arizona. — Within  ninety  days  from  the  date  of  dis- 
covering the  lode  and  posting  notice  thereon,^^  a  dis- 
covery  shaft  must  be  sunk  within  the  premises  claimed 
to  a  depth  of  at  least  eight  feet  from  the  lowest  rim  of 

34  Bryan  v.  MoCaig,  10  Colo.  309,  15  Pac.  413,  415;  Beals  v.  Cone, 
27  Colo.  473,  83  Am.  St.  Rep.  92,  62  Pae.  948,  958,  20  Morr.  Min.  Eep. 
591;  Van  Zandt  v.  Argentine  M.  Co.,  8  Fed.  725,  728,  2  McCrary,  159, 
4  Morr.  Min.  Rep.  441;  Terrible  M.  Co.  v.  Argentine  M.  Co.,  89  Fed. 
583;   Cheeseman  v.  Shreeve,  40  Fed.  787,  789,  17  Morr.  Min.  Rep.  260. 

35  Beals  V.  Cone,  27  Colo.  473,  83  Am.  St.  Rep.  92,  62  Pac.  948,  958, 
20  Morr.  Min.  Rep.  591.  In  the  case  of  Treasury  Tunnel  M.  &  R.  Co. 
V.  Boss,  32  Colo,  27,  105  Am.  St.  Rep.  60,  74  Pac.  888,  a  discovery  was 
made,  notice  posted  and  discovery  work  done  within  the  limits  of  a  prior 
patented  claim  and  notice  was  recorded.  Subsequently,  a  valid  discovery 
was  made  within  the  limits  of  the  claim  outside  of  the  patented  conflict- 
ing area,  and  discovery  work  done  at  the  new  point  of  discovery.  There- 
after the  ground  or  part  of  it  was  covered  by  a  subsequent  relocation  of 
another  claim,  and  it  was  contended  that  the  relocation  should  prevail 
by  reason  of  the  failure  to  post  and  record  a  second  notice.  The  court 
held  that  the  subsequent  discovery  and  performance  of  work  validated 
the  claim  as  against  the  later  relocation,  although  there  was  neither  post- 
ing or  recording  of  a  second  notice.  See  Bergquist  v.  West  Virginia  & 
W.  Copper  Co.,  18  Wyo.  234,  106  Pac.  673,  677. 

36  Mills'  Annot.  Stats.,  §  3154;  Rev.  Stats.  1908,  §  4199. 

37  Walsh  V.  Henry,  38  Colo.  393,  88  Pac.  449,  450. 

38  Laws  1895,  p.  54,  §  6;  Rev.  Stats,  1901,  §  3234;  Amd,  Laws  1909, 
p.  157. 


§  343  THE  DISCOVERY   SHAFT  AND   ITS  EQUIVALENT.  798 

sucli  shaft  at  the  surface,  and  deeper  if  necessary,  until 
there  is  disclosed  in  said  shaft  mineral  in  place.^® 

Any  open  cut,  adit,  or  tunnel  which  shall  be  made 
as  above  provided,  as  a  part  of  the  location,  and  which 
shall  be  equal  in  amount  of  work  to  a  shaft  eight  feet 
deep  and  four  feet  wide  by  six  feet  long,  and  which 
shall  cut  a  lode  or  mineral  in  place  at  the  depth  of  eight 
feet  from  the  surface,  is  equivalent  as  discovery  work 
to  a  shaft  sunk  from  the  surface.*" 

Idaho. — The  locator  must  complete  his  location  by 
marking  his  boundaries  within  ten  days  from  the  date 
of  discovery." 

Within  sixty  days  from  the  date  of  location,  the 
locator  must  sink  a  shaft  upon  the  lode  to  the  depth 
of  at  least  ten  feet  from  the  lowest  part  of  the  rim  of' 
such  shaft  at  the  surface,  and  of  not  less  than  sixteen 
square  feet  in  area.  Any  excavation  which  shall  cut 
such  vein  ten  feet  from  the  lowest  part  of  the  rim  of 
such  shaft,  and  which  shall  measure  one  hundred  and 
sixty  cubic  feet  in  extent,  shall  be  considered  a  compli- 
ance with  this  provision." 

Montana. — After  discovery,  the  initial  step  in  the 
series  of  acts  culminating  in  a  completed  location  is 
the  posting  of  a  notice." 

Before  the  expiration  of  sixty  days  from  the  date  of 
such  posting,  the  locator  must  sink  a  discovery  shaft 
to  the  same  depth  as  required  by  the  laws  of  Colorado, 
except  that  to  the  words  "well-defined  crevice"  is 
added  *'or  valuable  deposit."     The  equivalent  of  such 

89  Eev.  Stats.  1901,  §  3234;  Amd.  Laws  1909,  p.  157. 

«o  Rev.  Stats.  1901,  §  3237;  Amd.  Laws  1909,  p.  157. 

<i  Eev.  Stats.,  §  3101,  as  amended — Laws  1895,  p.  26;  as  amended — 
Laws  1899,  p.  633;  Civ.  Code  1901,  §  2557;  Eev.  Code  1907,  §  3207. 

42  Stats.  1895,  p.  27,  §  3;  Civ.  Code  1901,  §  2558;  Key.  Code  1907, 
§  3208. 

*3  Pol.  Code,  §  3610;  Eev.  Codes  1907,  §  22S3. 


799  STATE  LAWS  REQUIRING  DEVELOPMENT  WORK.  §  343 

shaft  is  the  same  as  in  Colorado."  This  requirement 
has  been  held  to  be  valid  and  mandatory." 

Nevada.— The  posting  of  a  notice  is  required,  and 
before  the  expiration  of  ninety  days  thereafter  the 
locator  must  sink  a  discovery  shaft  to  a  depth  of  at 
least  ten  feet  from  the  lowest  part  of  the  rim  of  such 
shaft  at  the  surface,  or  deeper  if  necessary,  to  show 
by  such  work  a  lode  deposit  of  mineral  in  place.  A 
cut,  crosscut,  or  tunnel  which  cuts  the  lode  at  a  depth 
of  ten  feet,  or  an  open  cut  along  the  ledge  or  lode 
equivalent  in  size  to  a  shaft  four  feet  by  six  feet  by  ten 
feet  deep  is  equivalent  to  a  discovery  shaft."* 

This  legislation  has  been  held  to  be  valid." 

New  Mexico. — Within  ninety  days  from  the  time  of 
taking  possession,*^  and  prior  to  recording  the  notice 
of  location  (three  months  after  posting),  the  locator 
must  sink  a  discovery  shaft  upon  the  claim  to  the 

44  Pol.  Code,  §3611;  as  amended— Laws  1901,  p.  140,  §1;  Rev.  Codes 
1907,  §  2284. 

46  Purdum  v.  Laddin,  23  Mont.  387,  59  Pac.  153,  154.  See,  also.  Baker 
V.  Butte  City  Water  Co.,  28  Mont.  222,  104  Am.  St.  Rep.  683,  72  Pac. 
617,  618;  Butte  City  Water  Co.  v.  Baker,  196  U.  S.  119,  127,  25  Sup. 
Ct.  R-ep.  211,  49  L.  ed.  409;  McMillan  v.  Fernim  M.  Co.,  32  Colo.  38, 
105  Am.  St.  R€p.  64,  74  Pac.  461,  463 ;  S.  C,  on  writ  of  error,  197  U.  S, 
343,  25  Sup.  Ct.  Rep.  533,  49  L.  ed.  784;  Mares  v.  Dillon,  30  Mont.  117, 
75  Pac.  963,  964;  Dolan  v.  Passmore,  34  Mont,  277,  85  Pac.  1034,  1035; 
Helena  Gold  &  Iron  Co.  v.  Baggaley,  34  Mont.  464,  87  Pac.  455;  Butte 
Northern  Copper  Co.  v.  Radmilovich,  39  Mont.  157,  101  Pac.  1078,  1080. 

46  Comp.  Laws  1900,  §209;  as  amended— Stats.  1901,  p.  97;  Stats. 
1907,  p.  418;  Rev.  Laws  1912,  §  2423. 

47  Sissons  V.  Sommers,  24  Nev.  379,  77  Am.  St.  Hep.  815,  55  Pac.  829, 
830. 

48  There  is  nothing  in  the  statutes  of  New  Mexico  fixing  the  time 
■within  which  possession  is  to  be  taken,  or  defining  what  constitutes  sue  hi 
possession.  A  notice  is  required  to  be  posted,  and  within  three  months 
to  be  recorded.  The  posting  of  this  notice  is  probably  "taking  posses- 
sion." Erhardt  v.  Boaro,  8  Fed.  692,  693,  2  McCrary,  141,  4  Morr.  Min. 
Rep.  432. 


§  343  THE  DISCOVERY   SHAFT   AND   ITS  EQUIVALENT.  800 

depth  of  at  least  ten  feet  from  the  lowest  part  of  the 
rim  of  such  shaft  at  the  surface,  or  must  drive  a  tun- 
nel, open  cut,  or  adit  upon  such  claim,  exposing  min- 
eral in  place  at  least  ten  feet  below  the  surface." 

North  Dakota. — The  locator  must  record  a  location 
certificate  within  sixty  days  from  the  date  of  dis- 
covery,^°  and  before  filing  such  certificate  for  record, 
must  sink  a  discovery  shaft  on  the  claim  sufficient  to 
show  a  well-defined  mineral  vein  or  lode.°^ 

There  is  also  a  provision  granting  the  locator  sixty 
days  from  the  time  of  uncovering  or  disclosing  the  lode 
in  which  to  sink  such  shaft.^^  The  statute  is  evidently 
drawn  on  the  lines  of  the  Colorado  law,  with  this 
marked  distinction:  In  Colorado  the  shaft  must  be  sunk 
within  three  months  from  the  date  of  the  discovery, 
and  within  sixty  daj^s  from  uncovering  or  disclosing 
the  lode,  suggesting  that  the  locator  might  have  thirty 
days  after  discovery  to  uncover  or  disclose  his  lode. 
In  North  Dakota  the  time  is  fixed  at  sixty  days  from 
date  of  discovery  (i.  e.,  before  recording  the  notice), 
and  sixty  days  from  uncovering  or  disclosing  the  lode. 
To  give  the  statute  effect  in  all  its  parts,  the  uncover- 
ing or  disclosing  the  lode  must  be  construed  as  mean- 
ing the  discovery.  If  this  be  not  true,  then  the  locator 
might  have  an  indefinite  time  in  which  to  uncover  and 
disclose  his  lode. 

If  a  discovery  should  be  made  on  January  1st,  the 
certificate  must  be  recorded  on  or  before  March  2d.  If 
the  lode  is  not  uncovered  or  disclosed  until  the  5th  of 
January,  unless  the  construction  we  place  upon  the  law 
is  correct,  the  locator  would  have  until  March  8th  to 
sink  his  shaft,  rendering  nugatory  the  requirement 

49  Laws  1889,  p.  42;  Comp.  Laws  1897,  §  2298. 

50  E«v.  Pol.  Code  1895,  §  1428;  Id.  1899,  §  1428;  Id.  1905,  §  1802. 
61  E^v.  Pol.  Code,  1895,  §  1430;  Id.  1899,  §  1430;  Id.  1905,  §  1804. 
52  Eev.  Pol.  Code  1895,  §  1433;  Id.  1905,  §  1807. 


801  STATE  LAWS  REQUIRING  DEVELOPMENT  WORK.  §  343 

that  he  should  perform  this  development  work  before 
the  certificate  is  recorded.  It  would  therefore  seem 
that  the  provision  allowing  sixty  days  from  the  uncov- 
ering of  the  lode  in  which  to  sink  the  shaft  is  inop- 
erative unless  that  act  is  understood  to  mean  the 
discovery. 

Any  open  cut,  crosscut,  or  tunnel,  at  a  depth  suffi- 
cient to  disclose  the  mineral  vein  or  lode,  or  an  adit  of 
at  least  ten  feet  along  the  lode  from  the  point  where 
the  lode  may  be  in  any  manner  discovered,  is  equiva- 
lent in  North  Dakota  to  a  discovery  shaft.^^ 

Oregon. — The  locator  is  required  to  post  a  notice  of 
discovery,  and  before  the  expiration  of  sixty  days  from 
the  date  of  such  posting,  and  before  recording  the 
notice  of  location,  must  sink  a  discovery  shaft  upon 
the  claim  located  to  a  depth  of  at  least  ten  feet  from 
the  lowest  part  of  the  rim  of  such  shaft  at  the  surface, 
or  deeper,  if  necessary,  to  show  by  such  work  a  lode,  or 
vein,  of  mineral  deposit  in  place.  A  cut,  crosscut,  or 
tunnel  which  cuts  the  lode  at  a  depth  of  ten  feet,  or  an 
open  cut  at  least  six  feet  deep,  four  feet  wide,  and  ten 
feet  in  length  along  the  lode,  from  a  point  where  the 
same  may  be  in  any  manner  discovered,  is  equivalent 
to  such  discovery  shaft.  It  is  provided  that  such  work 
shall  not  be  deemed  a  part  of  the  assessment  work 
required  by  the  Revised  Statutes  of  the  United  States. 
An  affidavit  showing  compliance  with  the  foregoing 
provisions  is  required  to  be  made  and  attached  to  the 
notice  of  location  and  recorded  therewith." 

South  Dakota. — The  laws  upon  this  subject  in  South 
Dakota  are  the  same  as  in  North  Dakota,  with  the  ex- 
es Rev.  Pol.  Code,  §  1432;  Id.  1899,  §  1432;  Id.  1905,  §  1806. 
54  Laws   1898,  p.    17,   as   amended— Laws   1901,  p.    141;    Bellinger  & 
Cotton's  Codes,  §  3977  ;   Lord's   Or.  Laws,  §  5130. 
Lindley  on  M. — 5i 


§  343  THE  DISCOVERY   SHAFT  AND   ITS  EQUIVALENT.  802 

ception  that  the  discovery  shaft  must  not  be  less  than 
ten  feet  in  depth  on  the  lower  side,  and  the  open  cut, 
to  be  equivalent  to  a  discovery  shaft,  is  required  to  be 
of  at  least  ten  feet  face."* 

Washington. — The  discoverer  is  required  within 
ninety  days  from  the  date  of  discovery  to  record  a  loca- 
tion notice.  Before  filing  the  same  for  record  he  must 
sink  a  discovery  shaft  upon  the  lode  to  the  depth  of  ten 
feet  from  the  lowest  part  of  the  rim  of  such  shaft  at  the 
surface.  Any  open  cut  or  tunnel  having  a  length  of  ten 
feet,  which  shall  cut  a  lode  at  the  depth  of  ten  feet 
below  the  surface,  shall  hold  the  lode  the  same  as  if  a 
discovery  shaft  were  sunk  thereon,  and  shall  be 
equivalent  thereto." 

These  provisions  do  not  apply  to  claims  lying  west  of 
the  summit  of  the  Cascade  mountains. 

Wyoming. — The  locator  is  required  to  sink  a  shaft 
upon  the  discovered  lode  or  fissure  to  the  depth  of  ten 
feet  from  the  lowest  rim  of  the  shaft  at  the  surface 
within  sixty  days  from  the  date  of  discovery .''^ 

Any  open  cut  which  shall  cut  the  vein  ten  feet  in 
length,  and  with  face  ten  feet  in  height,  or  any  crosscut 
tunnel,  or  tunnel  on  the  vein,  ten  feet  in  length  which 
shall  cut  the  vein  ten  feet  below  the  surface,  measured 
from  the  bottom  of  such  tunnel,  is  considered  the 
equivalent  of  a  discovery  shaft." 

86  Comp.  Laws  Dak.  1887,  §  1999;  Grantham's  Ann,  Stata  (1899), 
§  2658,  as  amended*— Laws  1899,  p.  146,  §§  2659,  2660,  2662,  2663;  PoL 
Code  1903, §  2538. 

56  Laws  1899,  p.  69;  Rem.  &  Bal,  Code,  §  7359. 

6T  Laws  1888,  p.  88,  §  17;  Id.,  §  19,  as  amended— Laws  1890,  p.  180; 
Laws  1895,  ch.  108,  §2;  Rev.  Stats.  1899,  §§  2548,  2550;  Comp.  Stats. 
1910,  §§3469,  3471. 

58  Laws  1888,  p.  88,  §  18;  Rev.  Stats.  1899,  §  2549;  Comp.  Stats.  1910, 
§  3470. 


803  OBJECT   OF   THE   EEQUIREMENT.  §  344: 

§  344.  Object  of  requirement  as  to  development 
work. — The  object  of  this  class  of  legislation  is  two- 
fold:— 

(1)  To  demonstrate  to  a  reasonable  degree  of  cer- 
tainty that  the  deposit  sought  to  be  located  as  a  lode  is 
in  fact  a  vein  of  quartz  or  other  rock  in  place ; 

(2)  To  compel  the  discoverer  to  manifest  his  inten- 
tion to  claim  the  ground  in  good  faith  under  the  mining 
laws.^* 

The  supreme  court  of  Montana,  speaking  of  the  law 
of  that  state,  says  that  one  of  the  purposes  of  this  class 
of  legislation  was 

To  do  away  with  a  practice  which  has  prevailed 
prior  to  the  enactment  of  the  code  whereby  one  per- 
son with  little  labor  could  make  a  number  of  loca- 
tions in  the  same  locality  and  thus  withdraw  from 
exploration  by  other  prospectors  a  large  area  of  the 
public  land.  It  was  deemed  unwise  that  the  practice 
should  prevail,  and  hence  the  requirement  that  sub- 
stantial work  should  be  done  before  the  notice  of 
location  could  be  filed,  and  that  the  notice  should 
show  that  such  work  in  fact  had  been  done;  and 
though  the  posts  and  other  markings  might  disap- 
pear, the  excavations  upon  the  ground  would  remain, 
and  they  should  be  of  such  character  as  to  ncieet  the 
requirements  of  the  statute  and  effectuate  its  pur- 
pose.®" 

The  Colorado  act,  which  is  the  parent  of  all  the 
others,  was  passed  in  1874,  about  the  time  of  the  dis- 
covery of  the  blanket  carbonate  deposits  in  the  Lead- 
ville  regions.     In  these  localities,  the  vein  exposures, 

69  Text  quoted  and  approved,  Butte  Consol.  M.  Co.  v.  Barker,  35  Mont. 
327,  89  Pac.  302,  303,  90  Pac.  177;  Nichols  v.  Williams,  38  Mont.  532, 
100  Pac.  969,  970. 

«o  Helena  Gold  &  Iron  Co.  v.  Baggaley,  34  Mont.  464,  87  Pac.  455, 
457. 


§  344  THE  DISCOVERY   SHAFT  AND   ITS   EQUIVALENT.  804 

such  as  answered  the  popular  definition  of  outcrop, 
were  few,  along  the  sides  of  eroded  gulches,  and  the 
underlying  beds  were  in  the  main  reached  by  vertical 
shafts  sunk  from  the  surface  through  the  overlj'ing 
"slide"  and  white  porphyry  to  the  contact  with  the 
blue  limestone,  where  the  ore  bodies,  in  certain  geo- 
logical horizons,  were  usually  encountered.  In  many 
of  these  cases  there  was  no  real  discovery  from  the 
surface.  The  miner's  "indications"  consisted  of  the 
development  of  work  of  his  neighbors  and  the  gener- 
ally accepted  geological  theories. 

The  vertical  depth  from  the  surface  to  the  deposits 
varied  in  different  localities,  so  the  law  required  the 
shaft  to  be  sunk  to  a  sufficient  depth  to  show  a  well- 
defined  crevice.  These  local  conditions,  if  they  were 
not  the  moving  cause  of  the  enactment,  certainly 
proved  its  wisdom. 

On  the  other  hand,  in  the  absence  of  this  class  of 
state  legislation,  alleged  discoveries  may  be  made,  and 
after  marking  boundaries,  the  locator  is  allowed  a  year 
from  the  first  day  of  January  next  succeeding  the  date 
of  his  location  within  which  to  do  one  hundred  dol- 
lars' worth  of  work.  Until  that  time  elapses,  he  is  not 
called  upon  to  do  anything.  In  many  instances  he 
does  no  work  until  compelled  to,  and  about  the  time 
the  period  elapses,  he  "resumes"  work  which  he  never 
commenced,  and  each  succeeding  first  day  of  January 
finds  him  again  in  a  state  of  "resumption."  During 
this  period,  in  a  large  number  of  cases  which  have  come 
under  our  personal  observation,  the  location  is  a  threat, 
preventing  others  who  might  be  willing  to  develop  the 
ground  from  acquiring  rights.  The  requirement  that 
some  genuine  development  work  should  be  done  as  a 
condition  precedent  to  the  perfection  of  a  lode  location 
is  wise  and  beneficial,  and  the  courts  uniformly  enforce 


805  OBJECT   OF   THE    REQUIREMENT.  §  344 

the  law — not  with  rigid  strictness,  but  with  fairness 
and  liberality.  In  our  judgment,  this  class  of  state 
legislation  was  contemplated  by  congress  when  it  en- 
acted the  mining  laws.  Where  such  laws  have  been 
passed  upon  by  the  courts,  their  validity  has  been  up- 
held.°^ 

Work  required  by  this  class  of  statutes  to  be  done 
should  be  done  from  the  surface.  Secret  underground 
works  extending  from  shafts  in  other  claims  accessible 
only  to  the  locator  will  not  satisfy  the  law." 

The  time  limit  fixed  in  these  statutes  would  seem  to 
be  mandatory.  A  discoverer  could  not  extend  it  by 
simply  renewing  notices  or  changing  dates  on  the  old 
notices,  as  against  one  making  a  location  after  the  stat- 
utory period  following  the  original  discovery  and 
notice  had  expired.®^ 

61  Sissons  V.  Sommers,  24  Nev.  379,  77  Am.  St.  E«p.  815,  55  Pac.  829, 
830;  Northmore  v.  Simmons,  97  Fed.  386,  388,  38  C.  C.  A.  211,  20  Morr. 
Min.  Eep.  128;  Purdum  v.  Laddin,  23  Mont.  387,  59  Pac.  153,  154.  See 
Erhardt  v.  Boaro,  113  U.  S.  527,  535,  5  Sup.  Ct.  Eep.  560,  28  L.  ed.  1113, 
15  Morr.  Min.  Eep.  472,  and  Lockhart  v.  Johnson,  181  U.  S.  516,  526,  21 
Sup.  Ct.  Eep.  665,  45  L.  ed.  979.  But  see  Beals  v.  Cone,  27  Colo.  473,  83 
Am.  St.  Eep.  92,  62  Pac.  948,  958,  20  Morr.  Min.  Eep.  591;  Baker  v. 
Butte  City  Water  Co.,  28  Mont.  222,  104  Am.  St.  E«p.  683,  72  Pac.  617, 
618;  Butte  City  Water  Co.  v.  Baker,  196  U.  S.  119,  125,  25  Sup.  Ct. 
Eep.  211,  49  L.  ed.  409;  McMillen  v.  Ferruno  Min.  Co.,  32  Colo.  38,  105 
Am.  St.  Eep.  64,  74  Pac.  461;  S.  C,  in  error  dismiKsod,  197  U.  S.  343, 
25  Sup.  Ct.  Eep.  533,  49  L.  ed.  784;  Treasury  Tunnel  M.  &  E.  Co.  v. 
Boss,  32  Colo.  27,  105  Am.  St.  Eep.  60,  74  Pac.  888,  889;  Mares  v.  Dillon, 
30  Mont.  117,  75  Pac.  963;  Dolan  v.  Passmore,  34  Mont.  277,  85  Pac. 
1034,  1035 ;  Helena  Gold  &  Iron  Co.  v.  Baggaley,  34  Mont.  464,  87  Pac. 
455,  457;  Butte  Consol.  Min.  Co.  v.  Barker,  35  Mont.  327,  89  Pac.  302, 
303,  90  Pac.  177. 

62  Butte  Consol.  Min.  Co.  v.  Barker,  35  Mont.  327,  89  Pac.  302,  303; 
S.  C,  on  rehearing,  (Mont.)  90  Pac.  177,  178,  criticising  what  was  said 
in  Brewster  v.  Shoemaker,  28  Colo.  176,  89  Am.  St.  Eep.  188,  63  Pac.  309, 
310,  53  L.  R.  A.  793,  21  Morr.  Min.  Eep.  155.  See,  also,  Nichols  v. 
Williams,  38  Mont.  552,  100  Pac.  969,  970,  differentiating  the  Butte  con- 
solidated case. 

63  Ingemarson  v.  Coffey,  41  Colo.  407,  92  Pac.  908,  909. 


§  345  THE  DISCOVERY   SHAFT  AND  ITS  EQUIVALENT.  806 

§  345.  Relationship  of  the  discovery  to  the  dis- 
covery shaft. — As  Mr.  Morrison  in  his  ''Mining 
Rights"  tersely  states,"  "the  fact  of  discovery  is  a 
fact  of  itself,  to  be  totally  disconnected  from  the  idea 
of  discovery  shaft.  The  discovery  shaft  is  a  part  of 
the  process  of  location  subsequent  to  discovery."®^ 

When  we  speak  of  the  discovery  shaft,  we  mean  to 
include  in  that  term  the  various  equivalents  provided 
for  by  the  several  state  enactments,  as  hereinbefore 
outlined.^* 

As  heretofore  demonstrated,  the  discovery  must  be 
within  the  limits  of  the  location  as  ultimately  defined, 
and  upon  land  that  is  free  and  open  to  exploration.*^ 
The  same  rule  applies  to  the  discovery  shaft.®^  But  it 
is  not  required  that  the  development  work  shall  b^ 
performed  at  the  point  where  the  first  discovery  is 
made;®^  neither  is  it  required  that  the  discovery  shaft 
should  be  equidistant  from  the  end-lines.^**  The  lo- 
cator may  make  any  shaft  he  may  sink  his  discovery 
shaft,^^  provided  always,  that  he  discloses  within  it 
some  well-defined  crevice  or  mineral ' '  in  place. ' '  Such 
a  disclosure  in  the  discovery  shaft  is  necessary,  and 

84  14th  ed.,  p.  37. 

65  Quoted  in  Brewster  v.  Shoemaker,  28  Colo.  176,  89  Am.  St.  Rep.  188, 
63  Pac.  309,  310,  53  L.  R.  A.  793,  21  Morr.  Min.  Rep.  155. 

66  Brewster  v.  Shoemaker,  28  Colo.  176,  89  Am.  St.  Rep.  188,  63  Pae. 
309,  310,  53  L.  R.  A.  793,  21  Morr.  Min.  Rep.  155. 

67  Ante,  §  337. 

68  Armstrong  v.  Lower,  6  Colo.  393;  Upton  v.  Larkin,  5  Mont.  600,  6 
Pac.  66,  67;  Morr.  Min.  Rights,  14th  ed.,  p.  49. 

69  Butte  Northern  Copper  Co.  v.  Radmilovich,  39  Mont.  157,  101  Pac. 
1078,  1080. 

70  Taylor  v.  Parenteau,  23  Colo.  368,  48  Pac.  505,  507,  18  Morr.  Min. 
Rep.  534. 

71  Charge  of  Judge  Hallett  in  Terrible  M.  Co.  v.  Argentine  M,  Co.,  as 
outlined  in  Argentine  M.  Co.  v.  Terrible  M.  Co.,  122  U.  S.  478,  481,  7 
Sup.  Ct.  Rep.  1356,  30  L.  ed.  1140,  17  Morr.  Min.  Rep.  109.  This  charge 
is  reported  in  5  McCrary,  639,  89  Fed.  583. 


807  "discovery"  and  "discovery  shaft."  §  345 

the  mere  discovery  of  some  other  vein  within  the  limits 
of  the  claim  cannot  supply  the  absence  of  the  one  re- 
quired to  be  exposed  in  the  discovery  shaft,"  particu- 
larly where  other  rights  have  intervened/'  In  the 
absence  of  intervening  rights  the  locator  may  exercise 
the  privilege  of  performing  his  discovery  work  at  some 
point  within  the  claim  other  than  the  one  first  se- 
lected/* The  first  discovery  may  not  always  indicate 
to  the  miner  the  appropriate  place  where  economic 
considerations  require  his  development  work  to  be 
done."  For  the  purpose  of  enabling  him  to  determine 
these  facts  and  select  his  place,  the  state  laws  grant 
him  fixed  periods  within  which  to  make  his  selection 
and  complete  his  location,  with  the  necessary  condition 
attached,  that  if  he  fails  to  disclose  his  vein  at  or 
below  the  depth  required  by  the  local  laws,  and  within 
the  specified  period,  his  ground  will  become  subject  to 
relocation  by  the  next  comer. 

His  original  discovery  will  protect  him  in  his  posses- 
sion during  tlie  statutorj^  period,"  but  if  he  permits 
that  period  to  elapse,  and  fails  to  perform  his  develop- 
ment work  and  accomplish  the  results  contemplated  by 
law,  his  possession  must  yield  to  the  next  comer  who 

72  Beals  V.  Cone,  27  Colo.  473,  83  Am.  St.  Rep.  92,  62  Pac.  948,  958, 
20  Morr.  Min.  Rep.  591;  Fleming  v.  Daly,  12  Colo.  App.  439,  55  Pac. 
946,  949. 

T3  McMillen  v.  Ferrum  M.  Co.,  32  Colo.  38,  105  Am.  St.  Rep.  64,  74 
Pac.  461,  463;  writ  of  error  dismissed,  197  U.  S,  343,  25  Sup.  Ct.  Rep. 
533,  49  L.  ed.  784. 

74  Treasury  Tunnel  M.  &  R.  Co.  v.  Boss,  32  Colo.  27,  105  Am.  St. 
Rep.  60,  74  Pac.  888,  889. 

75  Harrington  v.  Chambers,  3  Utah,  94,  1  Pac.  362,  375. 

76  Erhardt  v.  Boaro,  113  U.  S.  527,  534,  5  Sup.  Ct.  Eep.  560,  28  L.  ed. 
1113,  15  Morr.  Min.  Rep.  472;  Marshall  v.  Harney  Peak  Tin  Co.,  1  S.  D. 
350,  47  N.  W.  290,  294;  Omar  v.  Soper,  11  Colo.  380,  7  Am.  St.  Rep. 
246,  18  Pac.  443,  446,  15  luorr.  Min.  Kep.  496. 


§  345  THE  DISCOVERY   SHAPT  AND   ITS  EQUIVALENT.  808 

succeeds  by  peaceable  methods  in  initiating  a  right." 
As  is  said  by  Mr.  Morrison,  the  neglect  of  the  locator 
to  comply  with  this  requirement  is  equivalent  to  an 
abandonment    of   the    inchoate    right    given   by   dis- 
covery.^^    The  discovery  has  performed  its  office.     The 
perfected  location  rests  ultimately  on  the  completed 
development  work.     This  we  understand  to  be  the  rule 
announced  by  Judge  Hallett  in  the  Adelaide-Camp 
Bird  case,'^  and  we  are  not  aware  of  any  adjudicated 
case  to  the  contrary.     It  is  true  that  the  supreme  court 
of  Utah^°  and  the  United  States  circuit  court,  ninth 
circuit,  district  of  California,®^  have  announced  that 
it  is  not  necessary  that  the  locator  should  show  the 
existence  of  a  vein  in  any  particular  place,  provided 
it  is  shown  to  exist  in  some  portion  of  the  claim;  but  v 
it  must  be  borne  in  mind  that  neither  the  laws  of  Utah 
nor  California  require  the  performance  of  development 
work  as  a  prerequisite  to  a  perfected  location,®^  and  in 
the  absence  of  such  local  legislation  it  is  not  required. 
An  original  discovery  may  be  made  in  the  discovery 
shaft,  even  after  a  location  has  been  perfected,  and 
this  will  be  sufficient  in  the  absence  of  intervening 
rights.®^ 

77  Lockhart  v.  Johnson,  181  U.  S.  516,  527,  21  Sup.  Ct.  Rep.  665,  45 
L.  ed.  979. 

78  Morr.  Min.  Eights,  14th  ed.,  p.  37. 

79  Van  Zanclt  v.  Argentin<5  M.  Co.,  8  Fed.  725,  728,  2  McCrary,  159, 
4  Morr.  Min.  Rep.  441. 

80  Harrington  v.  Chambers,  3  Utah,  94,  1  Pac.  362,  376. 

81  North  Noonday  M.  Co.  v.  fDrient  M.  Co.,  6  Saw.  299,  1  Fed.  522, 
531,  9  Morr.  Min.  Rep.  529. 

82  Ante,  §  343. 

83  Strepey  v.  Stark,  7  Colo.  619,  5  Pac.  Ill,  115,  17  Morr.  Min.  Rep. 
28 ;  Zollars  &  H.  C.  C.  M.  Co.  v.  Evans,  2  McCrary,  39,  5  Fed.  172,  175,  4 
Morr.  Min.  Rep.  407.  See  Treasury  Tunnel  M.  &  R.  Co.  ▼.  Boss,  32 
Cal.  27,  105  Am.  St.  Rep.  60,  74  Pac.  888,  889.  The  fact  that  the  dis- 
covery shaft  is  partly  on  one  claim  and  partly  on  another  is  held  to  be 
unimportant  (Phillips  v.  Brill,  17  Wyo.  26,  95  Pac.  856,  859),  provided 


809  EXTENT  OF  DEVELOPMENT  WORK.  §  346 

§  346.  Extent  of  development  work. — Tn  the  stato 
of  North  Dakota  the  requirements  of  the  law  are  satis- 
fied when  the  discovery  shaft  or  opening  shows  a  well- 
defined  mineral  vein,  or  lode,  regardless  of  the  vertical 
distance  from  the  surface  at  which  it  is  disclosed.  The 
other  precious  metal-bearing  states^*  require  a  certain 
depth  in  case  of  the  shaft,  and  length  in  case  of  other 
openings,  and  this  requirement  must  be  fulfilled,  al- 
though the  vein  is  disclosed  before  reaching  the  re- 
quired distance,  thus  giving  sanction  to  the  view 
hereinbefore  expressed,  that  the  object  of  requiring 
development  work  was  twof  old.®° 

For  example,  the  discovery  shaft  must  be  at  least  ten 
feet  deep.  It  must  be  deeper  if,  at  the  required  vertical 
distance  from  the  lowest  rim,  the  vein  or  crevice  be  not 
disclosed.  It  is  hardly  profitable  to  discuss  the  conse- 
quences flowing  from  a  failure  to  strictly  comply  with 
the  requirements  as  to  depth  if  the  proper  vein  ex- 
posure is  found  within  the  required  distance.  Prudent 
miners  will  not  jeopardize  valuable  rights  by  failing  to 
comply  fully  with  the  law,  and  courts  will  readily  de- 
tect a  manifest  attempt  at  evasion. 

The  requirement  as  to  disclosing  the  vein,  crevice,  or 
deposit  in  place,  which  terms  are  legal  equivalents,  is 

the  part  within  the  claim  for  which  the  work  is  ostensibly  done  is  of 
sufficient  size  for  ordinary  purposes  of  access.  Nichols  v.  Williams,  38 
Mont.  552,  100  Pac.  969,  970.  Work  must  be  done  from  the  surface, 
and  not  through  underground  works  in  other  claims.  Butte  Consol.  M. 
Co.  V.  Barker,  35  Mont.  327,  89  Pac.  302,  303,  90  Pac.  177.  The  con- 
trary inference  which  may  be  drawn  from  the  opinion  in  Brewster  v. 
Shoemaker,  28  Cblo.  176,  89  Am.  St.  Rep.  188,  53  L.  R.  A.  793,  63  Pac. 
309,  310,  21  Morr.  Min.  Rep.  155,  is  held  to  be  either  obiter  or  wrong. 
Butte  Consol.  M.  Co.  v.  Barker  (on  rehearing),  35  Mont.  327,  90  Pac. 
177,  178. 

8*  Colorado,  Arizona,  Idaho,  Montana,  Nevada,  New  Mexico,  Oregon, 
South  Dakota,  Washington,  and  Wyoming. 

86  Ante,  §  344. 


§  346  THE  DISCOVERY   SHAFT  AND  ITS  EQUIVALENT.  810 

unquestionably  mandatory.  What  constitutes  such  a 
vein  is  to  be  determined  by  the  rules  announced  by 
the  courts  in  the  adjudicated  cases,  "which  have  been 
fully  presented  in  preceding  articles,"  and  need  not 
here  be  repeated. 

A  former  statute  of  Montana  required  the  discovery 
shaft  to  disclose  at  least  one  wall  of  the  vein,"  but  this 
has  since  been  repealed.  It  has  been  decided  in  Colo- 
rado that  the  requirements  of  the  discovery-shaft  laws 
do  not  involve  the  uncovering  of  the  walls.  When  the 
shaft  is  sunk  to  the  necessary  depth  on  the  vein,  the 
statutory  condition  in  that  respect  is  fulfilled.  When 
a  given  formation  is  determined  to  be  a  lode,  the  walls 
or  at  least  lode  boundaries  are  a  geological  necessity. 
Their  existence  is  as  certain  as  that  of  the  vein,** 

In  construing  the  provisions  of  the  Colorado  statute 
providing  for  development  by  adit,  which  in  mining 
parlance  is  an  opening  on  and  along  the  vein  used  for 
drainage,  the  supreme  court  of  Colorado  has  held  that 
it  was  the  legislative  intention  to  substitute  horizontal 
development  in  and  along  the  lode  for  ten  feet,  in  lieu 
of  a  discovery  shaft  of  that  depth,  and  that  the  dis- 
tance below  the  surface  at  which  the  vein  appeared  in 
place  as  the  result  of  this  class  of  development  was 
immaterial.^® 

The  same  court  also  determined  that  an  ''adit"  need 
not  be  altogether  under  cover.®** 

86  Ante,  §§286-301. 

87  Foote  V.  National  M.  Co.,  2  Mont.  402;  O'Donnell  v.  Glenn,  8  Mont. 
248,  19  Pac.  302. 

88  Fleming  v.  Daly,  12  Colo.  App.  439,  55  Pac.  946,  949. 

89  Gray  v.  Truby,  6  Colo.  278;  Craig  v.  Thompson,  10  Colo.  517,  526, 
16  Pac.  24,  29;  Brewster  v.  Shoemaker,  28  Colo.  176,  89  Am.  St.  Rep. 
188,  63  Pac.  309,  53  L.  R.  A.  793,  21  Morr.  Min.  Rep.  155. 

90  Electro-Magnetic  M.  &  D.  Co.  v.  "Van  Auken,  9  Colo.  204,  11  Pac 
80,  81 J  Craig  v.  Thompson,  10  Colo.  517,  526,  16  Pac.  24,  29. 


811 


LOCAL.  CUSTOMS  AS  TO  NOTICE  AND  POSTING. 


§350 


Article  V.    The  PRELnrixARY  Notice  and  Its 

POSTIXG. 


350. 


Local   customs   as   to   pre- 

§ 

352. 

First  group. 

liminary   notice,   and   ita 

§ 

353. 

Second  group. 

posting    prior    to    enact- 

§ 

354. 

Third  group. 

ment  of    federal  laws — 

§ 

355. 

Liberal  rules  of  construc- 

Not required  by  congres- 

tion   applied    to    notices 

sional   law. 

§ 

356. 

Place  and  manner  of  post 

State  legislation  requiring 

ing. 

the  posting  of  notices — 

States  grouped. 

351. 


§  350.  Local  customs  as  to  preliminary  notice,  and 
its  posting  prior  to  enactment  of  federal  laws — Not  re- 
quired by  congressional  law. — During  the  period  when 
mining  privileges  upon  the  public  domain  were  gov- 
erned exclusively  by  the  local  regulations  and  customs 
of  miners,  the  first  step  in  the  inception  of  the  miner's 
right,  after  the  discovery,  was  the  posting  of  a  notice 
at  some  point  on,  or  in  reasonable  proximity  to,  the 
discovered  lode,  usually  upon  a  tree,  stake,  or  mound 
of  rocks."  The  posting  of  this  notice  ser\'ed  to  mani- 
fest the  intention  of  the  discoverer  to  claim  the  vein 
to  the  extent  described,  and  to  warn  all  others  seeking 
new  discoveries  that  there  was  a  prior  appropriation 
of  the  lode  to  which  the  posted  notice  applied.^^ 

These  notices  were  of  the  simplest  character,  were 
required  to  be  in  no  particular  form,  and  were  gener- 
ally prepared  by  unlettered  men.  They  served  the 
purpose,  however,  and  enabled  anyone  seeking  in  good 
faith  to  locate  claims  to  ascertain  the  extent  and  nature 

91  Yale  on  Mining  Claims  and  Water  Rights,  p.  78;  J.  Ross  Browne's 
Mineral  Resources,  1867,  pp.  236-242;  Gleeson  v.  Martin  White  M.  Co., 
13  Nev.  450. 

92  Yosemite  M.  Co.  v.  Emerson,  208  U.  S.  25,  31,  28  Sup.  Ct.  Eep.  196, 
52  L.  ed.  374. 


§  350  THE  PRELIMINARY   NOTICE  AND  ITS  POSTING.  812 

of  the  right  asserted  on  the  particular  lode  by  the  prior 
discoverer. 

During  this  period,  it  will  be  remembered,  as  well  as 
during  the  period  immediately  preceding  the  passage 
of  the  act  of  May  10,  1872,  the  lode  was  the  principal 
thing  sought,  and  the  surface  was  a  mere  incident.^' 
The  locator  could  hold  but  one  vein,^*  and  while  sur- 
face boundaries  were  eventually  in  some  way  defined, 
neither  the  form  nor  extent  of  such  surface,  prior  to 
filing  the  diagram  for  patent,  controlled  the  rights  on 
the  located  lode.®* 

While  the  act  of  1872  changed  all  this,'«  and  re- 
quired the  marking  of  surface  limits  inclosing  the 
located  lode,  it  did  not  dispense  with  the  necessity  of 
posting  the  preliminary  notice,  when  such  was  re-- 
quired  by  state  or  district  rules,  nor  destroy  its  useful- 
ness in  the  absence  of  any  such  regulations.  While,  in 
the  absence  of  state  legislation  or  district  regulations, 
the  posting  of  a  notice  on  the  claim  is  not  required 
at  any  stage  of  the  proceedings  culminating  in  the 
completion  of  the  location,®^  the  prospector's  first  im- 

83  A7ite,  §  58;  Johnson  v.  Parks,  10  Cal.  447,  449;  Patterson  v.  Hitch- 
cock, 3  Colo.  533,  544;  Wolfley  v.  Lebanon  M.  Co.,  4  Colo.  112;  Walrath 
V.  Champion  M.  Co.,  63  Fed.  552,  556';  Del  Monte  M.  Co.  v.  Last  Chance 
M.  Co.,  171  U.  S.  55,  63,  18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr. 
Min.  Rep.  370. 

94  Eureka  Case,  4  Saw.  302,  323,  Fed.  Cas.  No.  4548,  9  Morr.  Min. 
Rep.  578;  Eclipse  G.  &  S.  M.  Co.  v.  Spring,  59  Cal.  304. 

»5  Ante,  §  58. 

96  Ante,  §§  70,  71. 

97  Haws  V.  Victoria  C.  M.  Co.,  160  U.  S.  303,  317,  16  Sup.  Ct.  Rep. 
282,  40  L.  ed.  436;  Gird  v.  California  Oil  Co.,  60  Fed.  531,  536,  18  Morr. 
Min.  Rep.  45;  Book  v.  Justice  M.  Co.,  58  Fed.  106,  115,  17  Morr.  Min. 
Rep.  617;  Allen  v.  Dunlap,  24  Or.  229,  33  Pac.  675;  Carter  v.  Baciga- 
lupi,  83  Cal.  187,  192,  23  Pac.  361,  363;  Meydenbauer  v.  Stevens,  78 
Fed.  787,  791,  18  Morr.  Min.  Rep.  578;  Willeford  v.  Bell  (Cal.),  49  Pac. 
67;  Perigo  v.  Erwin,  85  Fed.  904,  906,  19  Morr.  Min.  Rep.  269.  But 
see  Adams  v.  Crawford,  116  Cal.  495,  498,  48  Pac.  488,  489;   Dwinneli 


813      STATE   LAWS    REQUIRING   POSTING    OF    NOTICE.       §§351,352 

pulse  upon  discovering  a  lode  is  to  post  his  notice. 
While  his  failure  to  so  do,  where  the  state  law  or  local 
custom  does  not  require  it,  is  accompanied  with  no 
deprivation  of  right,  yet  it  may  be  safely  said  that  the 
practice  of  posting  a  notice  of  this  character  is  almost 
universal. 

§  351.  State  legislation  requiring  the  posting  of 
notices — States  grouped. — In  the  Territory  of  Alaska 
there  is  no  law  of  congress  on  the  subject  of  posting 
notices.  The  matter  is  governed  by  local  regulations 
and  customs,  and  posting  is  as  a  rule  required.  Prac- 
tically all  of  the  precious  metal-bearing  states  subject 
to  the  federal  mining  laws  require  the  posting  of  a 
notice  of  location. 

For  the  purpose  of  disclosing  the  nature  of  such  legis- 
lation, we  may  group  the  states  into  three  classes : — 

(1)  Those  requiring  a  preliminary  notice  which  has 
no  reference  to  the  recorded  certificate  of  location; 

(2)  Those  wherein  the  posted  notice  bears  a  direct 
relation  to  the  recorded  certificate; 

(3)  Those  requiring  two  different  notices  to  be 
posted — one  a  preliminary,  or  discovery  notice,  the 
other  conforming  to  the  certificate  which  must  ulti- 
mately be  recorded. 

§  352.    First  group.— 

Colorado  requires  to  be  posted  at  the  point  of  dis- 
covery on  the  surface  a  plain  sign,  or  notice,  contain- 

V.  Dyer,  145  Cal.  12,  78  Pac.  247,  253,  7  L.  R.  A.,  N.  S.,  763;  Anderson 
V.  Caughey,  3  Cal.  App.  22,  84  Pac.  223,  224;  Daggett  v.  Yreka  M.  &.  M. 
Co.,  149  Cal.  357,  86  Pac.  968,  969;  Walton  v.  Wild  Goose  M.  &  T.  Co., 
123  Fed.  209,  218,  60  C.  C.  A.  155,  22  Morr.  Min.  Rep.  688;  Sturtevant 
V.  Vogel,  167  Fed.  448,  454,  93  C.  C.  A.  84;  Saxton  v.  Perry,  47  Colo. 
263,  107  Pac.  281,  283. 


§  352  THE  PRELIMINARY   NOTICE   AND  ITS   POSTING.  814 

ing:  (1)  the  name  of  the  lode;  (2)  the  name  of  the 
locator;  (3)  the  date  of  discovery.  This  posting  must 
precede  the  recording  of  the  certificate  of  location,  but 
otherwise  the  posted  notice  is  wholly  disconnected 
from  the  recorded  instrument.®* 

Montana. — The  Montana  law  adds  to  the  require- 
ments of  the  Colorado  law:  (4)  the  number  of  linear 
feet  each  way  from  the  point  of  discovery;  (4a)  the 
width  on  each  side  of  the  center  of  the  vein;  (4b)  the 
general  course  of  the  vein.®®  Nothing  is  said  as  to 
when  the  notice  shall  be  posted,  but  the  inference  is 
that  it  should  be  done  at  the  time  of  the  discovery."" 

Nevada. — The  requirements  in  this  state  are  the 
same  as  those  of  Montana.^ 

North  Dakota^  and  South  Dakota*  add  to  the 
Colorado  requirements:  (4)  the  number  of  feet  claimed 
in  length  on  either  side  of  the  discovery;  (5)  number 
of  feet  in  width  on  either  side  of  the  lode. 

Washington. — The  contents  of  the  notice  required 
in  Washington  are  the  same  as  those  in  Colorado.* 

88  Mills'  Annot.  Stats.,  §  3152 ;  Rev.  Stats.  1908,  §  4197. 

99  A  mistake  in  this  course,  however,  would  not  vitiate  the  loca- 
tion. Butte  Northern  Copper  Co.  v.  Eadmilovich,  39  Mont.  157,  101 
Pac.  1078,  1080. 

100  Rev.  Pol.  Code  1895,  §3610;  Rev.  Code  1907,  §2283.  Validity 
upheld:  Purdum  v.  Laddin,  23  Mont.  387,  59  Pac.  153,  154;  Baker  v. 
Butte  City  Water  Co.,  28  Mont.  222,  104  Am.  St.  Rep.  683,  72  Pac. 
617,  618;  Butte  City  Water  Co.  v.  Baker,  196  U.  S.  119,  124,  25  Sup. 
Ct.  Rep.  211,  49  L.  ed.  409;  Mares  v.  Dillon,  30  Mont.  117,  75  Pac.  963. 

1  Comp.  Laws  1900,  §208,  amended  1907,  p.  418;  Rev.  Laws  1912, 
§  2422. 

2  Rev.  Codes,  §  1430,  subd.  2;  Id.  1899,  §  1430;   Id.  1905,  §  1804. 

3  Comp.  Laws  of  Dakota,  1887,  §  2001,  adopted  by  South  Dakota- 
Laws  1890-91,  ch.  cv,  §  1;  Grantham's  Ann.  Stats.  S.  D.  (1899),  §  2660, 
as  amended— Laws  1899,  p.  148;  Rev.  Pol.  Code  1903,  §  2537. 

4  Laws  1899,  p.  69;  Ballinger's  Supp.  1901-3,  §  3151a;  Rem.  &  BaL 
Codes  1909,  §7358. 


815  STATE   LAWS  REQUIRING   POSTINQ   OP  NOTICE.  §  353 

Wyoming. — The  requirements  in  this  state  are  the 
same  as  in  Colorado,  except  that  the  name  of  the  dis- 
coverer must  also  appear,  suggesting  that  the  locator 
and  discoverer  may  be  different  persons.' 

§  353.    Second  group. — 

Arizona  requires  the  posting,  at  or  contiguous  to  the 
point  of  discovery  on  the  surface,  of  a  location  notice, 
which  must  contain:  (1)  name  of  claim;  (2)  name  of 
locator;  (3)  date  of  location;  (4)  the  length  and  width 
of  the  claim  in  feet,  and  the  distance  from  the  point 
of  discovery  to  each  end  of  the  claim;  (5)  the  general 
course  of  the  claim;  (6)  locality  of  the  claim  with  ref- 
erence to  natural  monuments.  A  copy  of  the  location 
notice  must  be  recorded." 

California  requires  posting  of  notice  at  point  of  dis- 
covery which  must  contain:  (1)  the  name  of  the  lode 
or  claim;  (2)  name  of  locator;  (3)  number  of  linear 
feet  along  the  course  of  the  vein  each  way  from  the 
point  of  discovery;  (4)  width  on  each  side  of  the  center 
of  the  claim;  (5)  general  course  of  the  vein  as  near  as 
may  be;  (6)  date  of  location;  (7)  description  of  the 
claim  with  reference  to  some  natural  object  or  per- 
manent monument.''  A  true  copy  of  the  posted  notice 
must  be  recorded  within  thirty  days  after  posting.® 

New  Mexico  provides  for  the  posting,  in  some  con- 
spicuous place  on  the  location,  of  a  notice  in  writing, 
stating:  (1)  the  names  of  the  locators;  (2)  the  intent 
to  locate  the  claim;  (3)  a  description  by  reference  to 

8  Laws  1888,  p.  88,  §  17;  Kev.  Stats.  1899,  §  2548;  Comp.  Stats.  1910, 
S3469. 

«  Rev.  Stats.  1901,  §  3232.  Statute  commented  on  in  Wiltsee  v. 
King  of  Arizona  M.  &  M.  Co..  7  Ariz.  95,  60  Pac.  896. 

7  Civ.  Code,  §  142G. 

•  Civ.  Code,  §  1426b. 


§  353  THE  PEELIMINAEY   NOTICE  AND  ITS  POSTING.  816 

some  natural  object  or  permanent  monument.     A  copy 
of  this  notice  as  posted  must  be  recorded.® 

Oregon  requires  the  locator  to  post  on  the  claim  a 
notice  of  discovery  and  location,  which  shall  contain: 
(1)  name  of  the  claim;  (2)  name  of  locator;  (3)  date 
of  the  location;  (4)  number  of  linear  feet  claimed  along 
the  vein  or  lode  each  way  from  the  point  of  discovery, 
with  the  width  on  each  side -of  the  lode  or  vein;  (5) 
the  general  course,  or  strike,  of  the  vein,  or  lode,  as 
nearly  as  may  be,  with  reference  to  some  natural  ob- 
ject or  permanent  monument  in  the  vicinity  thereof. 
K  copy  of  the  notice  so  posted,  together  with  an  affi- 
davit of  sinking  of  the  discovery  shaft,  must  be  re- 
Dorded.** 

Utah  requires  posting,  at  the  place  of  discovery,  of  a 
notice  of  location,  which  shall  contain:  (1)  the  name  of 
the  lode  or  claim;  (2)  the  name  of  the  locator;  (3)  the 
date  of  location;  (4)  the  number  of  linear  feet  claimed 
in  length  along  the  course  of  the  vein,  each  way  from 
the  point  of  discovery,  with  the  width  on  each  side  of 
the  center  of  the  vein,  and  the  general  course  of  the 
vein,  or  lode,  and  such  a  description  of  the  claim 
located  by  reference  to  some  natural  object  or  perma- 
nent monument,  as  will  identify  the  claim.  A  substan- 
tial copy  of  such  notice  of  location  must  be  recorded." 

9  Comp.  Laws  1884,  p.  754,  §1566;  Id.  1897,  §2286.  The  posting 
of  this  notice  must  be  practically  contemporaneous  with  the  discovery. 
No  appreciable  time  is  allowed.  Deeney  v.  Mineral  Creek  M.  Co.,  11 
N.  M.  279,  67  Pac.  724,  725,  22  Morr.  Min.  Rep.  47;  Upton  v.  Santa 
Eita  M.  Co.,  14  N.  M.  96,  89  Pac.  275,  285. 

10  Laws  1898,  p.  16,  §§  1,  2,  as  amended — Laws  1901,  p.  140; 
Bellinger  &  Cotton's  Code,  §  3975;  Lord's  Or.  Laws,  §5128. 

IX  Comp.  Laws  1907,  §  1496. 


817  NOTICES  LIBERALLY  CONSTRUED.  §§354,355 

§  354.    Third  group.— 

Idaho  is  the  only  state  in  this  group.  Its  laws  pro- 
vide for  the  posting  of  two  notices: — 

(1)  At  the  time  of  the  discovery,  when  a  monnment 
must  be  erected  at  the  place  of  discovery,  upon  which 
the  locator  must  place  his  name,  the  date  of  discovery, 
and  the  distance  claimed  along  the  vein  each  way  from 
such  monument; 

(2)  At  the  time  of  marking  his  boundaries  he  must 
post  another  notice,  the  requirements  of  which  are 
much  more  elaborate,  and  a  substantial  copy  of  which 
must  be  recorded." 

§  355.  Liberal  rules  of  construction  applied  to  no- 
tices.— The  statutory  requirements  found  in  the  first 
group  of  states,  and  the  first  requirement  in  the  third 
group,  are  nothing  more  than  the  perpetuation  of  the 
system  in  vogue  during  the  early  history  of  the  mining 
industry  of  the  west."  They  preserve  the  simplicity 
of  the  primitive  system  and  recognize  the  fact  that 
miners  are  unacquainted  with  legal  forms,  and  usu- 
ally are  out  of  reach  of  legal  assistance.^*  A  sample 
of  these  preliminary  notices  may  be  found  in  the  re- 
ports of  any  of  the  mining  states.  A  case  involving 
the  following  notice,  arising  under  the  statute  of 
Colorado,  heretofore  referred  to,  reached  the  supreme 
court  of  the  United  States:  "Hawk  Lode. — We,  the 
undersigned,  claim  fifteen  hundred  feet  on  this  min- 
eral-bearing lode,  vein,  or  deposit," — dated  and  signed 

12  Laws  1895,  p,  26,  amending  §  3101,  Eev.  Stats.;  Laws  1899,  p. 
336,  §  2,  as  amended— Laws  1899,  p.  633;  Civ.  Code  1901,  §2557;  Rev. 
Code  1907,  §  3207. 

13  Bergquist  v.  West  Virginia-Wyoming  Copper  Co.,  18  Wyo.  234, 
106  Pac.  673,  679. 

1*  Carter  v.  Bacigahipi,  83  Cal.  187,  193,  23  Pac.  361,  363. 
Lindley  on  M. — 52 


§  355  THE  PRELIMINARY  NOTICE  AND  ITS  POSTINa.  818 

by  the  locators.  It  was  contended,  and  tlie  court 
below  held,  that  the  notice  was  insufficient  because  it 
failed  to  designate  the  number  of  feet  on  each  side  of 
the  discovery  point.  The  supreme  court  of  the  United 
States  ruled,  however,  that  as  the  law  did  not  require 
the  linear  distances  from  the  discovery  monument  to 
be  stated,  the  notice  and  its  posting  was  a  valid  appro- 
priation of  the  lode  to  the  extent  of  seven  hundred 
and  fifty  feet  on  each  side  of  the  posted  notice." 
In  construing  these  notices,  both  the  courts  and  land 
department  have  been  uniformly  liberal.  As  was  said 
by  the  supreme  court  of  Utah," — 

When  the  location  was  evidently  made  in  good 
faith  we  are  not  disposed  to  hold  the  locator  to  a 
very  strict  compliance  with  respect  to  his  location 
notice.^' 

As  such  notices  are  generally  made  by  unlettered 
men,  it  would  be  productive  of  a  great  hardship  if  pros- 
pectors should  be  held  to  technical  accuracy  in  their 
preparation.  If  they  are  sufficiently  certain  to  put  an 
honest  inquirer  in  the  way  of  ascertaining  where  the 
lode  is,  that  is  sufficient.^* 

15  Erhardt  v.  Boaro,  113  TJ.  S.  527,  533,  5  Sup.  Ct.  Eep.  560,  28 
L.  ed.  1113,  15  Morr.  Min.  Eep.  472;  Bramlett  v.  Flick,  23  Mont.  95, 
57  Pac.  869,  871,  20  Morr.  Min.  Rep.  103. 

16  Farmington  G.  M.  Co.  v.  Ehymney,  20  Utah,  363,  77  Am.  St.  Rep. 
913,  58  Pac.  832,  833, 

17  See,  also,  Upton  v.  Santa  Rita  M.  Co.,  14  N.  M.  96,  89  Pac.  275; 
Butte  Copper  Co.  v.  Radmilovich,  39  Mont.  157,  101  Pac.  1078,  1080. 

18  Prince  of  Wales  Lode,  2  Copp's  L.  O.  2;  Carter  v.  Bacigalupi,  83 
Cal.  187,  193,  23  Pac.  361,  363 ;  Gird  v.  California  Oil  Co.,  60  Fed.  531, 
544,  18  Morr.  Min.  Rep.  45;  Book  v.  Justice  M.  Co.,  58  Fed.  106,  115, 
17  Morr.  Min.  Eep.  617;  Doe  v.  Waterloo  M.  Co.,  70  Fed.  455,  458, 
17  C.  C.  A.  190,  18  Morr.  Min.  Rep,  2Q5;  Sanders  v.  Noble,  22  Mont. 
110,  55  Pac.  1037,  1039,  19  Morr.  Min.  Rep.  650;  Wilson  v.  Triumph 
Cons.  M.  Co.,  19  Utah,  66,  75  Am.  St.  Rep.  718,  56  Pac.  300,  303;  Mc- 
Cann  v.  McMillan,  129  Cal,  350,  62  Pac.  31,  33,  21  Morr.  Min.  Bep.  6; 


819  NOTICES  LIBERALLY  CONSTRUED.  §  355 

When  we  deal  with  cases,  however,  arising  under 
laws  similar  to  those  found  in  Arizona,  California,  New 
Mexico,  Oregon,  and  Utah,  and  provisions  like  those 
of  Idaho  in  reference  to  the  second  notice  required  by 
that  state  to  be  posted,  we  encounter  a  different  ele- 
ment. Where  the  posted  notice  is  the  basis  of  the  one 
to  be  ultimately  recorded,  the  provisions  of  the  federal 
law  are  operative,  and  the  posted  notice  must  contain 
the  requirements  of  that  law  as  to  the  contents  of  the 
record." 

The  distinction  between  the  notice  of  discovery  or 
notice  of  location  required  to  be  posted  on  the  claim 
and  the  certificate  or  declaratory  statement  required 
to  be  filed  for  record  is  a  substantial  one,  easily 
understood  when  the  purpose  of  each  is  kept  in 
mind.^° 

A  notice  might  serve  the  purpose  of  a  notice  of  dis- 
covery manifesting  an  intention  to  locate,  and  be 
wholly  insufficient  as  a  notice  of  perfected  location 
which  is  to  be  recorded." 

In  the  absence  of  a  state  statute  or  local  rule  requir- 
ing it,  the  posted  notice  need  not  contain  any  reference 
to  natural  objects  or  permanent  monuments,  but  the 
recorded  notice  must  contain  such  description." 

Wells  V.  Davis,  22  Utah,  322,  62  Pac.  3,  4,  21  Morr.  Min.  Eep.  1;  Walsh 
V.  Erwin,  115  Fed.  531,  536;  Bonanza  Consol.  v.  G-olden  Head  M.  Co., 
29  Utah,  159,  80  Pac.  736,  738;  Zerres  v.  Vanina,  134  Fed.  610,  616; 
S.  C,  in  error,  150  Fed.  564,  SO  C.  C.  A.  366. 

19  Decney  v.  Mineral  Creek  M.  Co.,  11  N.  M.  279,  67  Pac.  724,  726, 
22  Morr.  Min.  Eep.  47. 

20  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037,  1046,  19  Morr.  Min. 
Eep.  650;  Peters  v,  Tonopah  M.  Co.,  120  Fed.  587,  589. 

21  Doe  V.  Waterloo  M.  Co.,  70  Fed.  455,  458,  17  C.  C.  A.  190,  18  Morr. 
Min.  Eep.  265;  Gleeson  v.  Martin  White  M.  Co.,  13  Nev.  465;  Gird  v. 
California  Oil  Co.,  60  Fed.  531,  536,  18  Morr.  Min.  Eep.  45;  Peters  v. 
Tonopah  M.  Co.,  120  Fed.  587,  5S9. 

22  Brady  v.  Husby,  21  Nev.  453,  33  Pac.  801,  802;  Poujade  v.  Evan, 
21  Nev.  449,  33  Pac.  659;  Southern  Cross  M.  Co.  v.  Europa  M.  Co.,  15 
NfiT.  383. 


§  356  THE  PRELIMINARY   NOTICE  AND  ITS  POSTING.  820 

Where  a  statute  or  local  rule  prescribes  the  form  of 
a  notice  to  be  posted,  and  provides  that  a  copy  of  such 
notice  shall  be  recorded,  if  such  notice  does  not  contain 
the  requirement  of  the  federal  and  state  "  statutes  it  i& 
an  insufficient  record.  The  supreme  court  of  Cali- 
fornia has  said  that  where  district  rules  provide  for 
the  recording  of  a  copy  of  a  posted  notice,  such  record 
is  sufficient;  "  but  this  must  not  be  understood  as  sanc- 
tioning a  rule  that  the  record  of  a  posted  notice  is  suffi- 
cient where  such  posted  notice  does  not  contain  the 
facts  required  by  section  twenty-three  hundred  and 
twenty-four  of  the  Revised  Statutes  providing  for  the 
contents  of  the  record.  Neither  a  local  rule  nor  a  state 
statute  can  dispense  with  the  plain  requirements  of 
the  federal  law.^' 

§  356.  Place  and  manner  of  posting. — ^Most  of  the 
state  laws  requiring  notices  to  be  posted  fix  the  point 
of  discovery  as  the  place  of  posting.^®  Naturally,  this 
will  be  on  the  lode,  or  in  such  reasonable  proximity  as 
will  identify  it.  In  California,  a  local  district  custom 
required  that  a  notice  of  location  of  a  quartz  claim 
should  be  in  writing,  "and  posted  conspicuously  in  a 
conspicuous  place  upon  the  claim  located,  at  or  near 
the  lode  line  of  said  claim." 

23  Purdum  v.  Laddin,  23  Mont.  387,  59  Pac.  153,  154;  Baker  v^ 
Butte  City  Water  Co.,  28  Mont.  222,  104  Am.  St.  Eep.  683,  72  Pac.  617; 
Butte  City  Water  Co.  v.  Baker,  196  U.  S.  119,  127,  25  Sup.  Ct.  Eep. 
211,  49  L.  ed.  409;  Hahn  v.  James,  29  Mont.  1,  73  Pac.  965;  Dolan  v. 
Passmore,  34  Mont.  277,  85  Pac.  1034;  Helena  Gold  &  Iron  Co.  v. 
Baggaley,  34  Mont.  464,  87  Pac.  455. 

24  Carter  v.  Bacigalupi,  83  Cal.  187,  23  Pac.  361. 

25  Post,  §§  389-392. 

26  The  supreme  court  of  Montana  holds  that  a  failure  to  regard  this 
requirement  vitiates  the  location  as  against  an  intervening  right. 
Butte  Northern  Copper  Co.  v.  Eadmilovich,  39  Mont.  157,  101  Pac^ 
1078,  1080. 


S21  PLACE    AND    MANNER    OF    POSTING.  §  356 

The  supreme  court  of  that  state  held  that  such  a 
notice,  written  on  one  side  of  a  sheet  of  paper  which 
was  folded  with  the  writing  inside  and  placed  upon  a 
mound  of  rocks  three  feet  high,  underneath  two  flat 
rocks,  with  a  margin  of  the  paper  exposed  to  view,  the 
rest  being  obscured  by  the  two  stones  which  covered 
it,  was  a  conspicuous  posting  in  a  conspicuous  place, 
and  satisfied  the  rule." 

An  artificial  mound  of  rocks  on  the  line  of  a  lode  is 
a  conspicuous  object  which  would  naturally  attract  the 
attention  of  one  seeking  information  as  to  a  former 
location  of  a  lode,  and  the  slightest  examination  of  the 
mound  would  result  in  the  discovery  of  a  written  no- 
tice. 

In  another  case  in  the  same  state,  it  was  held  that  a 
written  notice  placed  in  a  tin  can,  and  the  can  placed  in 
a  mound  of  rocks,  was  sufficient  posting.^^ 

It  is  manifest  that  some  precaution  should  be  taken 
to  protect  the  notice  from  destruction  by  exposure  to 
wind  and  weather.  While  the  law  does  not  specifically 
require  the  locator  of  a  claim  to  keep  his  notice  up  per- 
petually,^^ yet  ordinary  prudence  suggests  that  it 
should  be  maintained  and  properly  protected. 

In  the  absence  of  any  specific  direction  in  the  state 
statute  or  district  regulation  prescribing  the  manner  of 
posting,  any  device  adopted  which  would  enable  one 
seeking  information  in  good  faith  to  discover  the  exist- 

27  Donahue  v.  Meister,  88  Cal.  121,  22  Am.  St.  Rep.  283,  25  Pac. 
1096,  1098. 

28  Gird  V.  California  Oil  Co.,  60  Fed.  531,  544,  18  Morr.  Min.  Eep. 
45. 

20  Nicholls  V.  Lewis  &  Clarke  M.  Co.,  18  Idaho,  224,  109  Pac.  846, 
«50 ;  Walton  v.  Wild  Goose  M.  &  T.  Co.,  123  Fed.  209,  217,  60  C.  C.  A. 
155,  22  Morr.  Min,  Eep.  688. 


§  356  THE  PRELIMINARY  NOTICE  AND  ITS  POSTING.  822 

ence  of  tlie  notice  should  be  sufficient.'**  The  posting 
of  such  a  notice  after  a  bona  fide  discovery  is  an  appro- 
priation of  the  territory  specified  for  the  period 
allowed  by  local  rules  or  state  legislation  for  the  per- 
formance of  the  remaining  acts  required  to  complete 
the  location,  and  the  appropriator  is  entitled  during 
that  period  to  be  protected  in  his  possession  against  all 
comers.'^ 

Ordinarily  we  should  say  that  the  notice  should 
be  placed  upon  "free  ground,"  that  is,  ground  free 
from  conflicts  with  other  locations.  At  the  same  time, 
posting  within  the  conflict  area  would  not  necessarily 
vitiate  the  location  unless  it  was  at  the  discovery  point, 
in  which  case  the  entire  location  would  fall."  An 
honest  mistake  in  posting  the  notice  and  inadvertently 
placing  it  within  the  conflict  area  may  be  condoned,  so 
long  as  the  notice  is  posted  within  the  limits  of  the 
location  as  claimed." 

80  Gird  V.  California  Oil  Co.,  60  Fed.  531,  544,  18  Morr.  Min.  Eep.  45; 
Bergquist  v.  West  Virginia  &  Wyoming  Copper  Co.,  18  Wyo.  234,  106 
Pac.  673. 

31  Ante,  §  339;  Erhardt  v.  Boaro,  113  U.  S.  527,  537,  5  Sup.  Ct.  Rep. 
560,  565,  28  L.  ed.  1113,  1116,  15  Morr.  Min.  Rep.  472,  477;  Marshall  v. 
Harney  Peak  Tin  M.  &  M.  Co.,  1  S.  D.  350,  47  N.  W.  290;  Omar  y. 
Soper,  11  Colo.  380,  387,  7  Am.  St.  Rep.  246,  18  Pac.  443,  446,  15  Morr. 
Min.  Eep.  496;  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037,  1041, 
19  Morr.  Min.  Rep.  650;  Iron  Silver  M.  Co.  v.  Elgin,  118  U.  S.  196,  6 
Sup.  Ct.  Rep.  1177,  30  L.  ed.  98,  15  Morr.  Min.  Rep.  641. 

82  Ante,  §  337. 

«»  Upton  V.  Santa  Rita  M.  Co.,  14  N.  M.  96,  89  Pac.  275,  285. 


823 


THE  IDEAL  LOCATION. 


360 


Akticle  VI.  The  Surface  Co^t:red  by  the  Loca- 
tion— Its  Form  and  Relationship  to  the 
Located  Lode. 


§  360.     The  ideal  location. 

§  361.  Surface  area,  length,  and 
width  of  lode  claims. 

{  362.  Location  covering  exces- 
sive area. 

§  363.  Surface  conflicts  with 
prior  unpatented  loca- 
tions. 

S  36i3b.  Surface      conflicts      with 


prior  patented  raining 
claims,  millsites,  and 
agricultural  lands. 

364.  Surface       must       include 

apex — Location  on  the 
dip. 

365.  The  end-lines. 

366.  The  side-lines. 

367.  Side-end  lines. 


§  360.  The  ideal  location. — ^When  we  speak  of  an 
ideal  location,  we  mean  one  which  not  only  responds 
to  all  the  requirements  of  the  law,  but  one  which  con- 
fers upon  its  possessor  the  greatest  possible  property 
right,  and  conforms  to  the  judicial  theories  of  what 
constitutes  the  highest  type  of  a  perfected  location. 
The  ideal  is  rarely  encountered  in  the  practical  mining 
world,  but  it  furnishes  a  convenient  standard  with 
which  the  every-day  location  may  be  compared,  en- 
abling us  to  show  to  what  extent  a  departure  from  the 
ideal  diminishes  the  property  rights  which  are  sus- 
ceptible of  acquisition  under  a  location  of  the  highest 
possible  type. 

The  ideal  location  must  have  for  its  basis  an  ideal 
lode,  such  a  one  as  we  have  described  and  illustrated 
in  a  preceding  section."  With  this  assumed,  we 
should  describe  the  highest  type  of  a  location  as  a  rec- 
tangular parallelogram,  the  lines  crossing  the  apex  of 
the  lode  at  right  angles  to  the  general  course  of  the 
vein,  termed  in  law  the  end-lines,  the  extremities  of 
which  are  equidistant  from  the  center  of  the  vein,  the 


M  Ante,  §  309. 


§  361  THE   SURFACE   COVERED   BY   THE  LOCATION.  824 

side-lines  parallel  to  the  course  of  the  vein;  that  is, 
equidistant  throughout  from  a  line  drawn  through  the 
center  of  the  apex  on  its  longitudinal  course ;  ^^  such  a 
location  as  is  represented  in  figure  11.^®  Without  in- 
tending to  enter  into  a  discussion  at  this  time  of  the 
extralateral  right,  we  may  say  that  this  form  of  loca- 
tion confers  upon  the  possessor  the  greatest  property 
rights  susceptible  of  being  conveyed  under  the  mining 
laws  applicable  to  lode  claims.  It  is  to  this  standard 
that  the  various  forms  of  locations  on  the  surface 
which  may  come  under  discussion  in  the  future  will 
be  compared. 

§  361.  Surface  ajea,  length,  and  width  of  lode 
claims. — Prior  to  the  passage  of  the  act  of  July  26, , 
1866,  the  number  and  length  of  claims  on  a  discovered 
lode,  and  the  extent  of  surface  ground  which  might  be 
occupied  and  enjoyed  therewith,  was,  like  everything 
else  connected  with  mining  upon  the  public  domain 
during  that  period,  regulated  by  district  rules  or  local 
customs.  The  act  of  1866  fixed  the  limit  of  a  single 
claim  at  two  hundred  feet  in  length  along  the  vein,  for 
each  locator,  except  the  discoverer,  who  was  entitled 
to  two  claims.  No  person  could  make  more  than  one 
location  on  the  same  lode,  and  not  more  than  three 
thousand  feet  could  be  taken  by  any  association  of  per- 
sons." 

As  to  width,  this  was  left  entirely  to  local  regula- 
tions. When  the  claimant  filed  the  diagram  of  his 
lode  on  application  for  patent,  he  was  called  upon  to 
extend  his  claim  laterally,  so  as  to  conform  to  the  local 

35  Empire  M.  &  M.  Co.  v.  Tombstone  M.  &  M.  Co.,  100  Fed.  910,  913, 
20  Morr.  Min.  Eep.  443. 

36  Ante,  §  309. 

87  14  stats,  at  Large,  p.  252,  §  4. 


825  SURFACE  DIMENSIONS  OF  LODE  CLAIMS.  §  361 

laws,  customs,  and  rules  of  miners.^®  In  some  dis- 
tricts, the  width  was  specified  with  reference  to  either 
the  center  of  the  vein  or  its  inclosing  walls.  In  others, 
the  locator  was  allowed  a  reasonable  quantity  of  sur- 
face. As  the  lode  was  the  principal  thing,  and  the 
surface  a  mere  incident,  neither  the  form  nor  extent  of 
the  surface  area  controlled  the  rights  on  the  located 
lode.^^ 

The  act  of  May  10,  1872,  which  is  incorporated  into 
the  Revised  Statutes,  changed  this  rule,  giving  to 
the  surface  boundaries  a  controlling  importance.*"*  It 
fixed  the  maximum  length  on  the  vein  at  fifteen  hun- 
dred feet,  and  a  maximum  surface  width  of  six  hun- 
dred feet,  three  hundred  feet  on  each  side  of  the  middle 
of  the  vein  at  the  surface." 

State  or  district  regulation  may  limit  this  width  to  a 
minimum  of  twenty-five  feet  on  each  side  of  the  middle 
of  the  vein,*^  and  we  cannot  see  why  the  length  of  a 
claim  may  not  likewise  be  limited  by  state  or  local 
rules  within  the  maximum." 

Be  that  as  it  may,  where  state  statutes  deal  with  the 
subject  at  all  they  follow  the  lines  of  the  federal  law,** 
and  no  such  limitation  has  ever  been  attempted  by  dis- 
trict regulations  within  our  knowledge. 

As  to  width,  the  maximum  allowed  by  the  federal 
law  is  the  rule,  except  in  a  few  localities.    In  Colorado, 

38  Id.,  p.  252,  §  2. 

39  Ante,  §  58. 
«o  Ante,  §  71. 

41  17  Stats,  at  Large,  p.  91,  §  2. 

42  Eev.  Stats.,  §2320;  North  Noonday  M.  Co.  v.  Orient  M.  Co.,  6 
Raw.  299,  305,  1  Fed.  522,  527,  9  Morr.  Min.  Rep.  529;  Jupiter  M.  Co.  t. 
Bodie  Cons.  M.  Co.,  7  Saw.  96,  104,  11  Fed.  666,  673,  4  Morr.  Min.  Eep. 
411;  Copp'9  Min.  Dec.  201;  In  re  Taylor,  9  Copp's  L.  O.  52,  92. 

43  Mr.  Morrison,  in  his  "Mining  Rights"  (14th  ed.,  p.  22),  doubts  the 
power  of  the  state  to  so  limit  the  length,  and  assigns  as  a  reason  that 
it  is  a  federal  limitation. 

*4  Ante,  §250  (1). 


§  361  THE  SURFACE   COVERED  BY  THE  LOCATION.  826 

the  maximum  width  is  one  hundred  and  fifty  feet  on 
each  side  of  the  middle  of  the  vein,"  which  rule  obtains 
in  North  Dakota."' 

The  last-named  state  provides  that  any  county  at 
any  general  election  may  determine  upon  a  greater 
width  within  the  limitations  of  the  federal  laws.*^ 

"With  the  exceptions  above  noted,  the  customary  sur- 
face area  is  therefore  fifteen  hundred  by  six  hundred 
feet,  embracing  twenty  and  two-thirds  acres.  This 
may  be  called  the  unit  of  lode  locations. 

It  is  entirely  immaterial  how  many  or  how  few  loca- 
tors participate  in  this  class  of  locations.  The  size  of 
the  ''claim,"  or,  more  properly,  the  location,  is  not 
governed  by  the  number  of  persons  participating  in  its 
appropriation.  There  is  nothing  in  the  law  which  pre-^ 
vents  any  one  locator  or  any  set  of  locators  from 
appropriating  as  many  locations  on  the  same  lode  as 
they  may  be  able  to  find  independent  discoveries  upon 
which  to  base  them;  congress  has  never  yet  seen 
proper  to  put  a  limit  on  the  number  of  claims  an  indi- 
vidual, company  or  corporation  may  locate  or  acquire. 
Whether  in  view  of  its  well-known  policy  to  encourage 
the  development  of  the  mineral  wealth  of  the  country 
it  shall  deem  it  wise  to  do  so  rests  with  congress  and 
is  a  matter  with  which  the  courts  have  nothing  to  do." 

*6  Stats.  1911,  p.  515,  amending  Mills'  A.nnot.  Stats.,  §  3149 ;  Gen. 
Stats.  1883,  p.  722;  Kev.  Stats.  1908,  §  4193. 

46  Rev.  Code,  1895,  §  1427;  Id.  1899,  §  1427;  Id.  1905,  §  1801. 

47  For  many  years  Colorado  had  upon  its  statute  books  a  similar 
law.  It  was  repealed  in  1911.  Mr.  Morrison  informs  us  that  no  at- 
tempt was  ever  made  by  any  county  to  change  the  width  through  an 
election.  He  doubts  the  constitutionality  of  the  law.  Morrison's 
Mining  Eights,  14th  ed.,  25. 

*8  Last  Chance  M.  Co.  v.  Bunker  Hill  &  Sullivan  M.  &  C.  Co.,  131 
Fed.  579,  583,  66  C,  C.  A.  299;  O'Connell  v.  Pinnacle  Gold  Mines  Co., 
131  Fed.  106,  109. 


827         LOCATION  COVEBINQ  EXCESSIVE  AREA.        §  362 

Oregon  has  a  statute  which  permits  the  holding  by 
one  person  of  one  claim  only  by  location,  and  as  many 
by  purchase  as  the  local  rules  of  the  district  may  per- 
mit.*' We  doubt  if  this  is  a  matter  which  may  be  con- 
trolled by  state  legislation  or  local  rules."" 

§  362.  Location  covering  excessive  area. — It  fre- 
quently happens  that  the  locator  marking  his  surface 
without  the  aid  of  chain  or  compass  includes  within  his 
boundaries  an  area  in  excess  of  the  statutory  limit. 

The  courts  uniformly  hold  that  such  a  location, 
where  it  injures  no  one  at  the  time  it  is  made,  is  not  un- 
reasonably excessive,'*^  and  where  it  has  been  made  in 
good  faith,  is  voidable  only  to  the  extent  of  the  ex- 
cess." 

"  Hill's  Ann.  Lawg  1892,  §3829;  Bellinger  &  Cotton's  Ann.  Code, 
§3974;   Lord's  Or.  Laws,  §5127. 

60  The  Philippine  code  limits  the  number  to  one.  We  shall  observe 
later,  when  dealing  with  placer  claims  in  Alaska,  a  limitation  upon 
the  number  of  claims  an  individual  may  locate. 

81  Nicholls  V.  Lewis  &  Clark  M.  Co.,  18  Idaho,  224,  109  Pac.  846; 
Flynn  Group  M.  Co.  v.  Murphy,  18  Idaho,  266,  138  Am,  St.  Kep.  201, 
109  Pac.  851,   1  Water  &  Min.  Cas.  619. 

62  Eose  V.  Eichmond  M.  Co.,  17  Nev.  25,  27  Pac.  1105;  Richmond  M. 
Co.  V.  Eose,  114  U.  S.  576,  580,  5  Sup.  Ct.  Eep.  1055,  29  L.  ed.  273; 
Glacier  Mt.  S.  M.  Co.  v.  Willis,  127  U.  S.  471,  481,  8  Sup.  Ct.  Eep.  1214, 
^  32  L.  ed.  172,  17  Morr.  Min.  Rep.  127;  Hauswirth  v.  Butcher,  4  Mont. 
299,  1  Pac.  714,  715;  Leggatt  v.  Stewart,  5  Mont.  107,  109,  2  Pac. 
320,  321,  15  Morr.  Min.  Eep.  358;  Lakin  v.  Dolly,  53  Fed.  333,  339; 
S.  C,  on  appeal,  54  Fed.  461,  4  C.  C.  A.  438;  Thompson  v.  Spray,  72 
Cal.  528,  14  Pac.  182,  185;  North  Noonday  M.  Co.  v.  Orient  M.  Co., 
6  Saw.  299,  1  Fed.  522,  530,  9  Morr.  Min.  Rep.  529;  Jupiter  M.  Co.  v. 
Bodie  Cons.  M.  Co.,  7  Saw.  96,  107,  11  Fed.  666,  670,  4  Morr.  Min. 
Eep.  411;  Atkins  v.  Hendree,  1  Idaho,  95;  Burke  v.  McDonald,  2  Idaho, 
646,  679,  33  Pac.  49,  50,  17  Morr.  Min.  Rep.  325;  Stemwinder  M.  Co. 
V.  Emma  &  L.  C.  M.  Co.,  2  Idaho,  421,  456,  21  Pac.  1040,  1042,  af- 
firmed on  appeal  to  U.  S.  Sup.  Ct.,  149  U.  S.  787,  13  Sup.  Ct.  Rep. 
1052,  37  L.  ed.  941;  Hansen  v.  Fletcher,  10  Utah,  266,  37  Pac.  480, 
482;  Howeth  v.  SuUenger,  113  Cal.  547,  45  Pac.  841;  Taylor  v.  Paren- 
teau,  23  Colo.  36S,  48  Pac.  505,  507,  18  Morr.  Min.  Rep.  534;  Stephens 


§  362  THE  SURFACE   COVERED   BY  THE  LOCATION.  82S 

Upon  application  for  patent,  the  monuments  may 
be  moved  and  the  lines  drawn  in  to  cast  off  the  excess/* 

It  is  possible  that  a  location  may  be  so  excessive  that 
when  considered  with  reference  to  topography,  en- 
vironment, the  conduct  of  the  locator  and  attendant 
circumstances,  the  presumption  of  fraudulent  intent 
may  arise  and  the  entire  location  might  be  held  void.®* 

Most  excessive  locations,  however,  are  the  result  of 
inadvertence  and  innocent  mistake. 

Where  a  lode  location  is  excessive,  and  the  area  ta 
which  a  locator  is  entitled  can  be  determined  by 
measurements  following  the  calls  for  distances  from 
the  discovery  contained  in  the  notice  of  location,  it  has 
been  held  that  a  subsequent  locator  may  measure  th& 
ground,  cast  off  and  locate  the  excess.^® 

The  notice  of  location,  as  a  rule,  specifies  the  linear 
distance  claimed  from  the  discovery  point,  and  when 

V.  Wood,  39  Or.  441,  65  Pac.  C02,  GOS,  21  Morr.  Min.  Eep.  443;  Gohres. 
V.  Illinois  &  J.  Gravel  Co.,  40  Or.  516,  67  Pae.  666,  667;  McElligott 
V.  Krogh,  151  Cal.  126,  90  Pac.  823,  825;  McPherson  v.  Julius,  17 
S.  D.  98,  95  N.  W.  428;  Walton  v.  Wild  Goose  M.  Co.,  123  Fed.  209, 
217,  60  C.  C.  A.  155,  22  Morr.  Min.  Eep.  688;  Zimmerman  v.  Funchion, 
161  Fed.  859,  860,  89  C.  C.  A.  53,  1  Water  &  Min.  Cas.  437;  Waskey 
V,  Hammer,  170  Fed.  31,  34,  95  C.  C.  A.  305;  affirmed,  223  U.  S.  85^ 
32  Sup.  Ct.  Eep.  187,  56  L.  ed.  359;  Jones  v.  Wild  Goose  M.  &  T. 
Co.,  177  Fed.  95,  101  C.  C.  A.  349,  29  L.  E.  A.,  N.  S.,  392;  Cordoner 
V.  Stanley  Cons.  M.  &  M.  Co.,  193  Fed.  517,  518;  Madeira  v.  Sonoma. 
Magnesite  Co.,  20  Cal.  App.  719,  130  Pae.  175,  178. 

63  In  re  Empey,  10  Copp's  L.  O.  102;  Howeth  v,  Sullenger,  113  Cah 
547,  45  Pac.  841,  842.  See  Golden  Eeward  M.  Co.  v.  Buxton  M.  Co.^ 
79  Fed.  868,  877;  Credo  M.  &  S.  Co.  v.  Highland  M.  &  M.  Co.,  95  Fed. 
011,  916,  where  this  rule  was  applied. 

54  Nicholls  V.  Lewis  &  Clark  M.  Co.,  18  Idaho,  224,  109  Pac.  846, 
848;  Flynn  Group  Mining  Co.  v.  Murphy,  IS  Idaho,  266,  138  Am.  St. 
Eep.  201,  109  Pac.  851-854,  1  Water  &  Min.  Cas.  619,  and  cases  cited; 
Ledoux  V.  Forester,  94  Fed.  600. 

55  Atkins  V.  Hendree,  1  Idaho,  95,  100;  McElligott  v.  Krogh,  151 
Cal.  126,  90  Pac.  823,  825;  McPherson  v.  Julius,  17  S.  D.  ,98,  95  N.  W.. 
428,  434;  Flynn  Group  M.  Co.  v.  Murphy,  18  Idaho,  266,  138  Am.  St.. 


€29  LOCATION    COVERING  EXCESSIVE  AREA.  §  362 

it  does  not,  the  locator  can  only  claim  seven  hundred 
and  fifty  feet  along  the  vein  on  each  side  of  the  dis- 
covery notice." 

Obviously,  this  is  the  method  which  the  courts  would 
follow  in  casting  off  excess. 

In  the  case  of  Flynn  Group  M.  Co.  v.  Murphy,"  it 
was  contended  that  in  case  of  an  excessive  lode  loca- 
tion the  locator  was  entitled  to  retain  possession  and 
himself  determine  where  the  excess  should  be  cut  off, 
and  that  until  he  exercised  this  privilege  none  of  the 
area  could  be  relocated.  The  court  declined  to  ap- 
prove this  contention,  and  followed  the  rule  permitting 
the  relocator  to  make  the  measurements  and  relocate 
the  resulting  excess. 

A  somewhat  different  rule  has  been  applied  by  the 
federal  courts  to  excessive  placer  locations  on  unsur- 
veyed  lands  in  Alaska.  As  to  such  locations,  it  has 
been  held  that  a  locator  of  an  excessive  location  has  a 
right  to  select  the  part  which  is  to  be  cast  off,^^  and 
that  until  he  has  been  made  aware  of  the  existence  of 
such  excess  and  has  been  afforded  a  reasonable  time 
to  exercise  his  right  of  selection,  no  relocation  of  any 
part  of  the  ground  will  be  permitted.^^ 

Rep.  201,  109  Pac.  851,  854,  1  Water  &  Min.  Cas.  619;  Cardoner  v. 
Stanley  Cons.  M.  Co.,  193  Fed.  517,  519. 

66  Erhardt  v.  Boaro,  113  U.  S.  527,  5  Sup.  Ct.  Rep.  560,  28  L.  ed. 
1113,  15  Morr.  Min.  Eep.  472. 

57  18  Idaho,  266,  138  Am.  St.  Eep.  201,  109  Pac.  851,  854,  1  Water 
&  Min.  Cas.  619. 

58  Mcintosh  V.  Price,  121  Fed.  716,  719,  58  C.  C.  A.  136;  Zimmer- 
mann  v.  Funchion,  161  Fed.  859,  860,  89  C.  C.  A.  53,  1  Water  &  Min. 
Cas.  437;  Waskey  v.  Hammer,  170  Fed.  31,  34,  95  C.  C.  A.  305,  af- 
firmed, 223  U.  S.  85,  32  Sup.  Ct.  Rep.  187,  56  L.  ed.  359;  Jones  v. 
Wild  Goose  M.  &  T.  Co.,  177  Fed.  95,  99. 

59  Zimmerman  v.  Funchion,  161  Fed.  859,  860,  89  C.  C.  A.  53,  1 
Water  &  Min.  Cas.  437;  Jones  v.  Wild  Goose  M.  &  T.  Co.,  177  Fed. 
95,  99. 


§  362  THE  SURFACE   COVERED   BY   THE  LOCATION.  830 

In  the  cases  cited  in  support  of  this  rule,  it  appears 
that  at  the  time  of  the  attempted  relocations,  the  orig- 
inal locators  were  in  possession  working  the  claim, 
and  that  a  trespass  was  committed  in  attempting  to 
invade  such  possession  by  including  a  part  of  the 
senior  claim  within  the  limits  of  the  junior  location. 
The  ratio  decidendi  seems  to  rest  on  the  well-recog- 
nized principle  that  no  right  to  land  on  the  public 
domain  can  be  initiated  by  a  trespass.®" 

The  difference  in  the  two  rules,  one  applied  to  lode 
claims  and  the  other  to  placers  on  unsurveyed  lands, 
may  be  accounted  for  and  upheld  by  reason  of  the 
difference  in  the  character  of  the  deposit,  the  manner 
and  form  of  location,  and  the  fact  that  in  one  class  of 
locations  there  is  furnished  by  the  locator  himself  a' 
guide  which  determines  the  manner  in  which  the  ex- 
cess should  be  cast  off,  and  in  the  other  there  is  no 
such  guide.  Most  of  the  excessive  placer  locations  on 
unsurveyed  lands  arise  from  a  faulty  computation  of 
superficial  area.  We  shall  have  occasion  to  further 
discuss  excessive  placer  locations.*^ 

An  excessive  lode  location  which  was  not  properly 
marked  on  the  ground,  and  the  notice  of  which  failed 
to  supply  the  information  from  which  a  second  locator 
could  make  the  measurements  and  determine  the  ex- 
cess, would  be  void  not  necessarily  because  it  was  ex- 
cessive, but  for  the  reason  that  the  law  governing  the 
manner  of  making  locations  had  not  been  complied 
with." 

«o  Ante,  §  217. 

61  Post,  §  448c. 

62  See  Ledoux  v.  Forester,  94  Fed.  600,  602;  Hauswirth  v.  Butcher^ 
4  Mont.  299,  1  Pac.  714,  715;  Leggatt  v.  Stewart,  5  Mont.  107,  109, 
2  Pac.  320,  321,  15  Morr.  Min.  Rep.  358;  Madeira  v.  Sonoma  Magneaite 
Co.,  20  Cal.  App.  719,  130  Pac.  175,  178,  179. 


831  LOCATION  COVERING  EXCESSIVE  AREA.        §  362 

A  lode  location  as  marked  on  the  ground  and  as  de- 
scribed in  the  notice  may  be  in  all  respects  regular  and 
within  the  statutory'  limit  as  to  both  length  and  width, 
yet  a  situation  may  arise  resulting  in  an  excessive 
width.  Where  the  locator  mistakes  the  course  of  his 
vein  and  locates  across  instead  of  along  it,  an  excess 
of  lateral  side-line  surface  results  and  should  be  cast 
off.  His  surface  rights  resting  on  location  would  prop- 
erly be  defined  by  lines  drawn  three  hundred  feet  on 
each  side  of  the  center  of  the  vein  as  it  actually  ran." 

The  validity  of  such  a  location  is  not  affected,  how- 
ever, and  it  has  been  held  that  a  relocator  is  not  per- 
mitted to  determine  for  himself  the  excess  in  width 
and  relocate  it.  The  original  locator  is  entitled  to  pos- 
session of  the  claim  as  located  until  he  readjusts  his 
lines  voluntarily  or  is  called  upon  to  do  so  by  the  land 
department  in  a  patent  proceeding.  The  reason  for 
this  rule  is  based  on  the  inherent  difficulties  surround- 
ing the  situation.  It  is  veiy  frequently  impossible, 
from  a  practical  standpoint,  to  ascertain  even  approxi- 
mately the  true  position  of  the  vein  apex  at  the  surface 
at  the  time  of  making  the  location  in  the  first  instance. 
To  compel  a  lode  claimant  to  cast  off  the  excess  of 
three  hundred  feet  from  his  vein  apex  every  time  min- 
ing developments  demonstrated  that  its  position  varied 
from  the  staked  lode  line  where  he  had  originally  as- 
sumed the  vein  apex  to  exist  would  result  in  great 
insecurity  of  surface  title  in  many  instances.  The 
courts  have  therefore  held  that  a  locator  who  has 
staked  out  his  lode  in  good  faith  is  entitled  to  the  pos- 
session of  his  surface  measured  from  his  staked  lode 

63  Southern  California  Ry.  v.  O'Donnell,  3  Cal.  App.  382,  85  Pac. 
932,  933;  McElligott  v.  Krogh,  151  Cal.  126,  90  Pac.  823,  825;  Harper 
V.  Hill,  159  Cal.  250,  113  Pac.  163,  166,  1  Water  &  Min.  Gas.  585. 


363  THE  SURFACE   COVERED   BY   THE  LOCATION. 


832 


line,  even  though  the  actual  apex  of  the  vein  may  be 
found  to  deviate  therefrom.®* 


FiGUKE  30b. 
Figure  30b  illustrates  the  Harper  Hill  case  last  cited. 
The  trial  court  had  found  the  position  of  the  actual  vein 
apex  to  deviate  quite  materially  from  the  staked  lode 
line  of  the  Lookout  claim,  and  held  that  the  southerly 
boundary  of  this  claim  must  be  drawn  in  and  rectified 
so  as  to  be  parallel  to  the  actual  vein  apex  and  not 
more  than  three  hundred  feet  distant.  The  supreme 
court  of  California  reversed  this  holding  and  decided 
that  the  Lookout  owner  was  entitled  to  the  possession 
of  his  entire  claim  as  staked  and  that  a  subsequent  dis- 
covery that  the  vein  apex  deviated  from  the  staked 
center  line  did  not  curtail  his  rights  to  any  portion  of 
the  surface. 

§  363.  Surface  conflicts  with  prior  unpatented  lo- 
cations.— It  frequently  happens,  either  through  hon- 
est mistake  or  premeditated  design,  that  the  lines  of 
a  junior  location  are  placed  upon  or  across  those  of  a 

64  Harper  v.  Hill,  159  Cal.  250,  113  Pae.  163,  166,  1  Water  &  Min. 
Cas.  585. 


833  CONFLICTS    WITH   PRIOR   UNPATENTED   LOCATIONS.       §  363 

valid  and  then  subsisting  prior  claim,  creating  a  sur- 
face conflict.  As  to  the  respective  rights  of  the  tvro 
locators,  so  long  as  the  senior  claim  is  perpetuated  and 
remains  valid  and  subsisting,  we  encounter  no  diffi- 
culty in  defining  them.  The  unbroken  current  of 
judicial  expression  enables  us  to  formulate  the  follow- 
ing legal  postulates: 

1.  A  junior  locator  cannot,  by  invading  the  limits  of 
a  prior  valid  and  then  subsisting  claim,  and  attempt- 
ing to  make  a  location  conflicting  with  such  claim, 
acquire  any  rights  which  might  in  any  way  infringe 
upon  those  of  the  previous  locator.  However  regu- 
lar in  form  such  junior  location  might  be,  it  is  of  no 
effect  as  against  rights  conferred  upon  the  prior  lo- 
cator so  long  as  the  prior  location  is  subsisting.®* 

65  Belk  V.  Meagher,  3  Mont.  65;  S.  C,  on  appeal,  104  U.  S.  279,  284,  26 
L.  ed,  735,  1  Morr.  Min.  Rep.  510;  Clipper  Mining  Co.  v.  Eli  M.  &  L. 
Co.,  194  U.  S.  220,  226,  24  Sup.  Ct.  Rep.  632,  48  L.  ed.  944,  and  cases  cited; 
Garthe  v.  Hart,  73  Gal.  541,  15  Pac.  93,  94, 15  Morr.  Min.  Rep.  492 ;  Souter 
V.  Maguire,  78  Cal.  543,  21  Pac.  183;  Argentine  M.  Co.  v.  Benedict,  18 
Utah,  183,  55  Pac.  559,  561;  Kinney  v.  Fleming,  6  Ariz.  263,  56  Pac. 
723,  724,  20  Morr.  Min.  Rep.  13;  Aurora  Hill  Cons.  M.  Co.  v.  85  Mining 
Co.,  12  Saw.  355,  34  Fed.  515,  521,  15  Morr.  Min.  Rep.  581;  Peoria 
&  Colorado  M.  &  M.  Co.  v.  Turner,  20  Colo.  App.  474,  79  Pac.  915, 
917;  Hoban  v.  Boyer,  37  Colo.  185,  85  Pac.  837;  Lockhart  v,  Farrell, 
31  Utah,  155,  86  Pac.  1077,  1078;  S.  C,  in  error,  210  U.  S.  142,  28  Sup. 
Ct.  Rep.  681,  52  L.  ed.  994,  16  L.  R.  A.,  N.  S.,  162;  Slothower  v. 
Hunter,  15  Wyo.  189,  88  Pac.  36,  38;  Nash  v.  McNamara,  30  Nev.  114, 
133  Am.  St.  Rep.  694,  93  Pac.  405,  406,  16  L.  R.  A.,  N.  S.,  168;  Farrell 
V.  Lockhart,  210  U.  S.  142,  28  Sup.  Ct.  Rep.  681,  52  L.  ed.  994,  16 
L.  R,  A.,  N.  S.,  162;  Moorhead  v.  Erie  M.  &  M.  Co.,  43  Colo.  408,  96 
Pac.  253;  McCulloch  v.  Murphy,  125  Fed.  147,  153;  Porter  v.  Tonopah 
North  Star  T.  &  D.  Co.,  133  Fed.  756,  758;  S.  C,  on  appeal,  146  Fed. 
385,  3S6,  76  C.  C.  A.  657;  Willitt  v.  Baker,  133  Fed.  937,  946;  Zerres 
V.  Vanin?,  134  Fed.  610,  614;  S.  C,  in  error,  150  Fed.  564,  566,  80 
C.  C.  A.  366;  Biglow  v.  Conradt,  159  Fed.  868,  870,  87  C.  C.  A.  48; 
Swaneon  v.  Kettler,  17  Idaho,  321,  105  Pac.  1059,  1061;  Swanson  v. 
Sears,  224  U.  S.  180,  32  Sup.  Ct.  Rep.  455,  56  L.  ed.  721;  Becker  t. 
Long,  196  Fed.  721 ;  Bergquist  v.  West  Virginia  &  Wyoming  C.  Co., 
Lindley  on  M. — 53 


§  363  THE  SURFACE   COVERED  BY   THE   LOCATION.  834: 

To  state  the  postulate  concretely  in  the  language  of 
the  supreme  court  of  the  United  States: — 

^  A  valid  location  appropriates  the  surface,  and  the 
rights  given  by  such  location  cannot,  so  long  as  it 
remains  in  force,  be  disturbed  by  any  acts  of  third 
parties.  Whatever  rights  on  or  beneath  the  surface 
passed  to  the  first  locator  can  in  no  manner  be  di- 
minished or  affected  by  a  subsequent  location.^^ 

2.  The  lines  of  such  junior  locator  may  be  so  laid  as 
to  create  a  surface  conflict  with  the  prior  location  for 
the  purpose  of  defining  for  or  securing  to  such  junior 
location,  underground  or  extralateral  rights  not  in 
conflict  with  any  rights  embraced  within  or  acquired 
by  the  senior  locator.®^ 

A  sample  illustration  of  these  two  principles  will 
suffice. 

e 


18  Wyo.  234,  106  Pac.  673,  677;  Street  v.  Delta  M.  Co.,  42  Mont.  371, 
112  Pac.  701,  704;  Stewart  v.  Eeese,  25  L.  D.  447;  Bound  Mountain  M. 
Co.  V.  Bound  Mountain  Sphinx  M.  Co.  (Nev.,  Jan.  4,  1913),  129  Pac. 
308,  312. 

66  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  79, 
18  Sup.  Ct.  Bep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370. 

67  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  79, 
18  Sup.  Ct.  Bep.   895,   43  L.   ed.   72,  19  Morr.  Min.  Bep.   370;   Big 


835  CONFLICTS    WITH   PRIOR  UNPATENTED   LOCATIONS.       §  363 

Figure  31  represents  three  lode  claims,  A,  B,  D,  with 
priorities  in  the  order  named.  A  and  B  have  so  placed 
the  lines  of  their  respective  claims  as  to  leave  the 
triangular  surface  c-b-g  with  the  apex  of  the  vein  pass- 
ing through  it,  free  and  open  to  location.  D  might 
have  located  the  triangular  tract,  but  as  his  end-lines 
would  not  have  been  parallel,  no  extralateral  right 
could  be  predicated  upon  a  location  in  that  form." 
The  location  in  that  form  would  have  been  valid  and 
the  locator  would  have  been  entitled  to  the  surface  and 
all  underground  parts  of  the  vein  lying  within  vertical 
planes  extended  downward,  but  would  have  been  de- 
nied all  extralateral  nght." 

The  underground  segment  of  the  vein  c-c'  and  g-h 
lying  between  the  extended  divergent  end-line  planes 
of  A  and  B,  b-c-c'  and  b-g-g'  was  not  embraced  within 
either  prior  location.  For  the  purpose  of  securing  the 
triangular  surface  b-c-g'  and  also  acquiring  at  least  a 
part  of  the  unappropriated  underground  segment  of 
the  vein,  D,  with  the  consent  of  B,  or  in  the  absence 
of  objection,  may  place  his  lines  b-m  and  m-g  upon 
the  surface  of  B.  By  so  doing  he  cannot  deprive  B 
of  any  part  of  the  area  in  conflict,  but  by  making  his 
location  as  shown  on  the  diagram,  he  acquires  the  free 
surface  ground  and  underground  rights  between  his 
extended  parallel  end-line  planes.^" 

Hatchet  Cons.  M.  Co.  v,  Colvin,  19  Colo.  App.  405,  75  Pac.  605; 
Tonopah  &  Salt  Lake  M.  Co.  v.  Tonopah  M.  Co.,  125  Fed.  400,  407. 

C8  Montana  Limited  v.  Clark,  42  Fed.  626,  629,  16  Morr.  Min.  Eep. 
81. 

89  Post,  §§  365,  582. 

TO  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  84, 
18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Kep.  370;  Empire 
State  Idaho  M.  &  D.  Co.  v.  Bunker  Hill  &  Sullivan  M.  &  C.  Co.,  114 
Fed.  417,  419,  52  C.  C.  A.  219,  22  Morr.  Min.  Rep.  104;  Big  Hatchet 
Cons.  M.  Co.  V.  Colvin,  19  Colo.  App.  405,  75  Pac.  605,  606;  Empire 


§  363  THE   SURFACE   COVERED   BY   THE   LOCATION.  836 

If  B  should  ultimately  abandon  his  location  the  con- 
flict area  would  not  fall  to  D/^  D  might,  subsequent  to 
the  abandonment  of  the  conflict  area  by  B,  amend  his 
location  and  include  the  overlapping  surface,"  but 
without  some  act  on  his  part  manifesting  an  intention 
to  make  a  new  appropriation  or  acquire  a  new  right 
to  the  conflict  area  after  abandonment  or  forfeiture 
by  B  became  effectual,  this  area  would  not  by  mere 
gravity  become  a  part  of  the  junior  location,^^  except 
for  the  purpose  of  defining  the  extralateral  right  of  D. 
This  doctrine  was  originally  announced  by  the  su- 
preme court  of  the  United  States  in  the  case  of  Belk  v. 
Meagher,^*  and  was  generally  recognized  throughout 
the  mining  regions  of  the  west.  It  was  for  the  time 
practically  overruled  in  the  later  case  of  Lavagnino  v. 
Uhlig,^^  but  subsequently  the  judicial  pendulum  swung 
back  to  the  rule  announced  in  the  Belk-Meagher  case, 
and  the  doctrine  of  that  case  as  stated  in  the  text  is 
now  firmly  established.'^* 

state  Idaho  M.  &  D.  Co.  v.  Bunker  Hill  &  S.  M.  Co.,  131  Fed.  591, 
604,  66  C.  C.  A.  99;  S.  C,  on  appeal,  Bunker  Hill  &  Sullivan  M.  &  C. 
Co.  V.  Empire  State  Idaho  M.  &  D.  Co.,  134  Fed.  268,  272.  Appeal 
dismissed,  200  U.  S.  613,  26  Sup.  Ct.  Eep.  754,  50  L.  ed.  620;  certiorari 
denied,  200  U.  S.  617,  26  Sup.  Ct.  Eep.  754,  50  L.  ed.  622;  Davis  v. 
Shepherd,  31  Colo.  141,  72  Pac.  57,  59,  22  Morr.  Min.  Eep.  575;  Clipper 
M.  Co.  V.  Eli  M.  &  L.  Co.,  194  U.  S.  220,  230,  24  Sup.  Ct.  Eep.  632, 
48  L.  ed.  944;  Tonopah  &  Salt  Lake  M.  Co.  v.  Tonopah  M.  Co.,  125 
Fed.  400,  407. 

71  Belk  V.  Meagher,  104  U.  S.  279,  285,  26  L.  ed.  735,  1  Morr.  Min. 
Eep.  510;  Oscamp  v.  Crystal  Eiver  M.  Co.,  58  Fed.  293,  295,  7  C.  C.  A. 
233,  17  Morr.  Min.  Eep.  651;  Jordan  v.  Duke,  6  Ariz.  55,  53  Pac.  197, 
201;  Eeynolds  v.  Pascoe,  24  Utah,  219,  66  Pac.  1064,  1065. 

72  Johnson  v.  Young,  18  Colo.  625,  34  Pac.  173. 

73  Pralus  V.  Pacific  G.  &  S.  M.  Co.,  35  Cal.  30,  36. 

7*  104  U.  S.  279,  285,  26  L.  ed.  735,  1  Morr.  Min.  Eep.  510. 

75  198  U.  S.  443,  25  Sup.  Ct.  Eep.  716,  49  L.  ed.  1119. 

76  Brown  v.  Gurney,  201  U.  S.  184,  192,  26  Sup.  Ct.  Eep.  509,  50 
L.  ed.  717;  Farrell  v.  Lockhart,  210  U.  S.  142,  145,  28  Sup.  Ct.  Bep. 


837  CONFLICTS   WITH  PRIOR   UNPATENTED   LOCATIONS.       §  363 

We  shall  have  occasion  to  again  refer  to  this  ques- 
tion." 

In  the  hypothetical  case  illustrated  by  figure  31  the 
placing  by  D  of  the  location  lines  across  and  upon  B's 
surface  is  not  necessarily  a  trespass/® 

It  may  be  conceded  that  such  a  conflicting  junior 
location  may  not  be  made  by  a  forcible  entry  upon  the 
actual  possession  of  the  senior.  Perhaps  the  senior 
locator  might  prevent  the  making  of  the  junior  loca- 
tion, so  far  as  the  placing  of  the  senior  lines  over  the 
prior  claim  was  concerned." 

It  is  well  settled  that  no  right  to  any  part  of  the 
public  domain  may  be  initiated  through  or  arise  out 
of  a  trespass.®" 

But  an  entry  upon  the  surface  of  the  senior  claim 
openly,  peaceably  and  in  good  faith,  claiming  nothing 
against  the  prior  claim,  gives  no  cause  of  complaint  to 
the  senior  claimant.®^ 

Certainly,  if  the  rights  of  the  prior  locator  are  not 
infringed  upon,  who  is  prejudiced  by  awarding  to 

681,  52  L.  ed.  994,  16  L.  E.  A.,  N.  S.,  162;  Swanson  v.  Sears,  224  U.  S. 
180,  32  Sup.  Ct.  Rep.  455,  56  L.  ed.  721. 
1'  Post,  §  645a. 

78  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  TJ.  S.  55, 
83,  18  Sup.  Ct.  Eep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Eep.  370;  Empire 
State  Idaho  M.  &  D.  Co.  v.  Bunker  Hill  and  Sullivan  M.  &  C.  Co.,  114 
Fed.  417,  419,  52  C.  C.  A,  219,  22  Morr.  Min.  Eep.  104;  Davis  v.  Shep- 
herd, 31  Colo.  141,  72  Pac.  57,  59,  22  Morr.  Min.  Eep.  575;  Cleary  v. 
Skiffich,  28  Colo.  362,  365,  89  Am.  St.  Eep.  207,  65  Pac.  59,  60,  21 
Morr.  Min.  Rep.  284;  Upton  v.  Santa  Eita  M.  Co.,  14  N.  M.  96,  89 
Pac.  275,  285;  Doe  v.  Tyler,  73  Cal.  21,  14  Pac.  375;  Moorhead  v.  Erie 
M.  &  M.  Co.,  43  Colo.  408,  96  Pac.  253,  256. 

79  Bunker  HiU  &  Sullivan  M.  &  C.  Co.  v.  Empire  State-Idaho  M. 
&  D.  Co.,  109  Fed.  538,  541,  48  C.  C.  A.  665,  21  Morr.  Min.  Rep.  317. 

80  Ante,  §  217. 

81  Empire  State-Idaho  M.  &  D.  Co.  v.  Bunker  Hill  M.  &  C.  Co., 
114  Fed,  417,  419,  52  C.  C.  A.  219,  22  Morr.  Min.  Rep.  104. 


§  363  THE  SURFACE  COVERED  BY  THE  LOCATION.  838 

the  second  locator  all  the  benefits  which  the  statute 
gives  to  the  making  of  a  claim?  ®^ 

The  circuit  court  of  appeals  for  the  ninth  circuit  ex- 
presses the  following  views : — 

It  is  the  settled  law  that  for  the  purpose  of  acquir- 
ing the  extralateral  rights  conferred  by  the  statute  a 
locator  may  place  his  lines  on  a  prior  mining  location 
with  the  consent  of  such  prior  locator,  or  when  it  is 
done  openly  and  aboveboard  without  objection  on  his 
part,  which  in  reality  constitutes  consent.** 

To  what  limit  this  doctrine  may  be  applied  is  a  ques- 
tion difficult  to  determine.  Some  unique  contentions 
are  made  with  regard  to  it  which  will  be  considered  in 
the  discussion  of  the  extralateral-right  problems. 

The  land  department  has  elaborated  this  doctrine  to 
some  extent,  and  in  passing  upon  patent  applications 
has  recognized  the  right  of  a  junior  locator  to  cross  a 
senior  location,  the  patent  issuing  to  the  junior  pro- 
prietor for  the  tract  described,  excepting  and  reserving 
the  area  in  conflict  with  the  senior  location. 

The  following  figures  illustrate  the  views  of  the  de- 
partment on  the  subject. 

Figure  32  exhibits  the  Hallett  and  Hamburg  lode 
claims  for  which  a  patent  was  applied,  and  which  were 
in  conflict  with  the  numerous  prior  locations  shown  on 
the  diagram.     The    patent    application  excluded  the 

82  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  84, 
18  Sup.  Ct.  Eep.  895,  4a  L.  ed.  72,  19  Morr.  Min.  Bep.  370. 

83  Empire  State-Idaho  M.  &  D.  Co.  v.  Bunker  Hill  &  Sullivan  M, 
&  C.  Co.,  114  Fed.  417,  419,  52  C.  C.  A.  219,  22  Morr.  Min.  Rep.  104; 
Bunker  Hill  &  Sullivan  M.  &  C.  Co.  v.  Empire  State-Idaho  M.  &  D. 
Co.,  134  Fed.  268,  272;  Empire  State-Idaho  M.  &  D.  Co.  v.  Bunker  Hill 
&  Sullivan  M.  &  C.  Co.,  131  Fed.  591,  604;  appeal  dismissed,  200  U.  S. 
613,  26  Sup.  Ct.  Rep.  754,  50  L.  ed.  620;  certiorari  denied,  200  U.  S. 
617,  26  Sup.  Ct.  Rep.  754,  50  L.  ed.  622.  See,  also,  CTipper  M.  Co.  v. 
Eli  M.  &  L.  Co.,  194  U.  S.  220,  230,  24  Sup.  Ct.  Rep.  632,  48  L.  ed.  944. 


839  CONFLICTS   WITH   PRIOR   UNPATENTED   LOCATIONS.       §  363 

area  in  conflict  with  the  locations  having  priority.  A 
protest  was  filed  against  the  issuance  of  the  patent  on 
the  ground,  among  others,  that  the  end-lines  and  cor- 
ners of  the  claims  applied  for  were  within  and  upon 


Figure  32. 
the  surface  of  valid  prior    locations.     The  secretary 
dismissed  the  protests,  upholding  the  validity  of  the 
locations  in  the  form  shown  on  the  figure,  citing  the 
Del  Monte  case  '*  as  authority  for  his  ruling.^^    It  re- 

84  171  U.  S.  55,  18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min. 
Eep.  370. 

85  Hallett  and  Hamburg  Lodes,  27  L.  D.  104. 


363 


THE   SURFACE   COVERED  BY   THE   LOCATION. 


840 


quires  more  intimate  familiarity  with  tlie  properties 
delineated  on  the  diagram  than  the  author  possesses 
to  determine  just  what  passed  by  the  patent  to  the 
Hallett  and  Hamburg  claims  after  deducting  the  con- 
flicting areas. 

Figure  33  presents  a  later  case  involving  the  same 
method  of  location.  The  Hustler  and  New  Year 
claims,  shown  on  this  figure,  were  contiguous  and  held 
in  common  ownership.     A  group  patent  was  applied 


S.E.*>Stc.ZT-  'SS.  n.  70  >« 


w>. 


^1^.^ 


\^' 


S.h^'/fSte.I. 


Figure  33. 
for.     Owing  to  the  conflict  between  the    Hustler  and 
Fort  Wilcox,  the  latter  being  the  prior  location,  the 
commissioner  of  the  general  land  office  directed    the 


841  CONFLICTS   WITH   PRIOR   UNPATENTED   LOCATIONS.       §  363 

drawing  in  of  the  Hustler  end-lines,  and  making  a  new 
end-line,  c-d.  This  destroyed  the  contiguity  of  the 
group  applied  for,  and  as  the  applicant  accepted  for 
the  time  being  the  commissioner's  ruling,  he  received 
a  patent  for  the  New  Year  alone.  He  subsequently 
repented  of  his  action,  and  applied  to  the  secretary  of 
the  interior  for  a  reinstatement  of  his  entry  and  re- 
quested that  patent  issue  for  the  Hustler,  after  deduct- 
ing conflicts  with  senior  locations.  The  secretary  re- 
versed the  action  of  the  commissioner,  principally  on 
the  ground  that  the  ruling  cut  the  claimant  off  from 
two  small  triangular  areas  marked  A  and  B  on  the 
figure,  which  were  embraced  within  the  original  loca- 
tion. Patent  was  directed  to  issue  in  accordance  with 
the  claimant's  application.  The  Del  Monte  case  was 
cited  as  authority  for  this  decision.^* 

In  the  case  of  the  War  Dance  lode,"  a  junior  loca- 
tion, which  ran  entirely  across  a  senior  location  and 
terminated  in  another  junior  but  excepted  claim,  was 
passed  to  patent  on  the  strength  of  the  Del  Monte  case 
and  the  decision  of  the  secretary  in  Hallett  and  Ham- 
burg lodes  {supra),  as  there  was  a  small  parcel  of  free 
ground  outside  of  the  conflicting  and  excluded  area 
which  was  within  the  limits  of  the  original  "War  Dance 
location.  It  is  manifest  from  a  consideration  of  the 
series  of  decisions  handed  down  by  the  secretary  of  the 
interior  on  this  subject  that  the  rule  announced  by  the 
supreme  court  of  the  United  States  in  the  Del  Monte 
case  has  been  applied  with  extreme  liberality,  and  in 
several  instances  at  least  to  conditions  which  did  not 
fall  within  either  the  motive  or  rationale  of  the  judi- 
cial decision  upon  which  the  later  departmental  rulings 
were  based.    In  the  light  of  the    later  revelation,  it 

86  Hustler  and  New  Year  Lode  Claims,  29  L.  D.  668. 

87  29  L.  D.  256. 


§  363  THE   SURFACE   COVERED   BY   THE   LOCATION.  842 

would  be  difficult  to  conceive  of  a  case  of  junior  con- 
flicts with  senior  locations  whicli  would  not  receive  the 
sanction  of  the  department. 

Prior  to  the  decision  of  the  Del  Monte  case,  the  land 
department  enforced  the  rule  that  the  rights  of  the 
junior  locator  did  not  extend  beyond  an  end-line  pass- 
ing through  the  point  where  the  lode  intersected  the 
exterior  line  of  the  senior  location,^^  and  that  the  sur- 
face right  as  an  adjunct  to  the  lode  could  not  extend 
beyond  that  point.^^ 

If  a  junior  lode  location  so  intersected  a  prior  claim 
as  to  divide  the  later  claim  into  two  parts,  the  claim- 
ant was  either  compelled  to  elect  which  of  the  two  dis- 
connected parts  he  would  take  or  the  entry  was  con- 
fined to  that  part  containing  his  discovery.®" 

The  Del  Monte  case  did  not  in  terms  purport  to  de- 
cide anything  more  than  that  a  junior  locator  might, 
for  the  purpose  of  defining  an  extralateral  right  not 
secured  by  prior  location,  place  his  end-lines  upon  the 
senior  claim.  The  land  department  permits  the  laying 
of  such  lines  entirely  across  the  senior  claim,  not  only 
for  this  purpose,  but  for  the  purpose  of  acquiring  sur- 
faces not  covered  by  the  older  location.  When  the 
patent  issues  for  this  class  of  claims,  it  necessarily  re- 
serves all  property  rights  pertaining  to  the  senior 
claim.^^  We  do  not  conceive  that  there  is  any  wrong 
done  to  anyone  by  the  adoption  of  this  rule.     An  in- 

88  Engineer  M.  &  D.  Co.,  8  L.  D.  361;  Consolidated  M.  Co.,  11  L.  D. 
250;  Correction  Lode,  15  L.  D.  67;  Stranger  Lode,  28  L.  D.  321. 

89  Plevna  Lode,  11  L.  D.  236. 

80  Andromeda  Lode,  13  L.  D.  146;  Bimetallic  Lode,  15  L.  D.  309; 
Mabel  Lode,  26  L.  D.  675;  see  Brown  v.  Gurney,  201  U.  S.  184,  192,  26 
Sup.  Ct.  Rep.  509,  50  L.  ed.   717. 

»i  For  a  case  involving  a  patent  of  this  character,  see  Big  Hatchet 
Cons.  M.  Co.  V.  Colvin,  19  Colo.  App.  405,  75  Pac.  605.  See,  also, 
Peoria  &  C.  M.  &  M.  Co.  v.  Turner,  20  Colo.  App.  474,  79  Pac.  915. 


843       SURFACE  CONFLICTS  WITH  PRIOR  PATENTS.     §  363a 

terpretation  of  this  kind  seems  tlie  only  possible  solu- 
tion of  some  of  the  difficulties  surrounding  locations  in 
districts  situated  as  in  Cripple  Creek,  Colorado,  with 
its  intricate  network  of  veins  running  in  every  con- 
ceivable direction.  In  fact,  the  "cross-lode"  ques- 
tions arising  in  this  district,  and  the  difficulty  of  their 
solution,  have  undoubtedly  influenced  the  later  depart- 
mental rulings.  Such  rulings  have  received  the  sanc- 
tion of  the  courts,®^  and  the  practice  based  thereon  may 
be  said  to  be  definitely  settled. 

§  363a.  Surface  conflicts  with  prior  patented  min- 
ing claims,  millsites,  and  agricultural  lands. — The  rule 
having  once  been  sanctioned  that  junior  lode  claimants 
might  lay  the  lines  of  their  locations  upon  or  across 
those  of  a  senior  lode  location,  the  extension  of  the  doc- 
trine to  patented  mining  claims,  millsites,  and  agricul- 
tural lands  was  not  only  accompanied  with  no  serious 
embarrassment,  but  such  result  was  natural  and  logi- 
cal. A  valid  unpatented  mining  location,  as  against 
every  one  save  the  government,  is  in  effect  a  grant. 
The  estate  enjoyed  is  in  the  nature  of  an  estate  in  fee.®^ 

There  is  no  reason  which  could  be  urged  in  support 
of  permitting  junior  locators  to  lay  the  lines  of  their 
claims  across  prior  unpatented  claims  which  could  not 
be  invoked  in  behalf  of  similar  doctrine  as  applied  to 

92  Calhoun  G.  M.  Co.  v.  Ajax  G.  M.  Co.,  27  Colo.  1,  22,  83  Am.  St. 
Eep.  17,  59  Pac.  607,  616,  50  L.  R.  A.  209,  20  Morr.  Min.  Rep.  192; 
S.  C,  on  appeal,  182  U.  S.  499,  21  Sup.  Ct.  Rep.  885,  45  L.  ed.  1200, 
21  Morr.  Min.  Rep.  381;  Bunker  Hill  &  Sullivan  M.  &  C.  Co.  v.  Empire 
State-Idaho  M.  &  D.  Co.,  109  Fed.  538,  541,  48  C.  C.  A.  665,  21  Morr. 
Min.  Rep.  317;  S.  C,  106  Fed.  471,  472;  S.  C,  on  writ  of  error,  sub.  nom. 
Empire  State-Idaho  M.  &  D.  Co.  v.  Bunker  Hill  &  Sullivan  M.  &  C, 
Co.,  114  Fed.  417,  419,  52  C.  C.  A.  219,  22  Morr.  Min.  Rep.  104;  Crown 
Point  M.  Co.  V.  Buck,  97  Fed.  462,  465,  3S  C.  C.  A,  278. 

03  Post,  §  539. 


§363a 


THE  SURFACE   COVERED  BY   THE   LOCATION. 


Sii 


patented  claims  of  all  classes.  This  is  quite  forcibly 
pointed  out  in  the  opinion  of  the  secretary  of  the  in- 
terior in  the  case  of  the  Hidee  lode,^*  a  group  applica- 
tion for  patent  embracing  the  claims  delineated  on 
fiorure  33a. 


Figure  33a. 
The  group  applied  for  consisted  of  the  Marks, 
Hidee,  Dale  and  Fay  lode  claims.  The  lines  of  the 
Marks,  Hidee  and  Dale  were  laid  upon  and  within  prior 
patented  claims.  The  secretary  ruled  that  the  claims 
were  properly  located  and  directed  patent  to  issue. 

94  30  L.  D.  420. 


845       SURFACE  CONFLICTS  WITH  PRIOR  PATENTS.     §  363a 

Judge  Hallett,  in  his  opinion  dismissing  the  bill  in 
the  Del  Monte  case  (from  whose  decision  an  appeal  was 
taken  to  the  circuit  court  of  appeals,  which  certified 
the  case  to  the  supreme  court  of  the  United  States), 
thus  announced  his  views: — 

I  think  that  the  lines  of  a  claim  may  be  located 
wholly  or  partly  upon  other  territory, — that  is,  terri- 
tory which  is  not  open  to  location, — for  the  purpose 
of  determining  the  extralateral  questions.  In  other 
words,  the  locator,  in  order  to  make  a  valid  location, 
is  bound  to  locate  his  lines  so  as  to  be  of  a  rectangular 
form,  and  if  in  so  locating  them  he  gets  upon  the 
territory  of  other  claimants,  whether  at  the  time  of 
such  location  the  claims  adjacent  have  or  have  not 
been  patented,  his  lines  are  well  laid  with  reference 
to  the  territory  subject  to  location ;  .  .  .  .  and  even  if 
the  lines  fell  upon  other  claims  which  had  already 
passed  to  patent,  the  result  would  be  the  same." 

The  secretary  of  the  interior,  in  an  ably  prepared 
opinion  in  the  Hidee  lode  case,®®  reached  the  result  con- 
cisely and  comprehensively  stated  in  the  syllabus  to 
the  case  as  follows: — 

The  location  lines  of  a  lode  mining  claim  are  used 
only  to  describe,  define,  and  limit  property  rights  in 
the  claim,  and  may  be  laid  within,  upon,  or  across  the 
surface  of  patented  lode  claims  for  the  purpose  of 
claiming  the  free  and  unappropriated  ground  within 
such  lines  and  the  veins  apexing  in  such  ground,  and 
of  defining  and  securing  extralateral  underground 
rights  upon  all  such  veins  where  such  lines  (a)  are 

95  Not  reported.  Judge  Hallett's  opinion  did  not  form  a  part  of  the 
record  certified  up  to  the  supreme  court  of  the  United  States  by  the 
circuit  court  of  appeals,  eighth  circuit.  The  opinion,  however,  was 
before  the  court  of  last  resort,  it  having  been  printed  in  the  brief  and 
argument  of  appellee  (Messrs.  Teller,  Wolcott,  and  Vaile),  from  which 
the  foregoing  extract  was  taken.  The  secretary  o-f  the  interior,  iu 
his  opinion  in  the  Hidee  lode,  refers  to  it  (30  L.  D.  42U,  427). 

86  30  L.  D.  420. 


§  363a  THE   SURFACE   COVERED   BY   THE   LOCATION,  846 

established  openly  and  peaceably,  {b)  do  not  em- 
brace any  larger  area  of  surface,  claimed  and  un- 
claimed, than  the  law  permits.®^ 

A  similar  rule  was  subsequently  prescribed  with 
regard  to  placing  the  lines  of  a  junior  lode  location 
over  prior  patented  agricultural  land.®®  A  contrary 
doctrine  had  been  previously  announced.®* 

Following  the  same  line  of  reasoning,  it  was  also  held 
that  an  application  for  a  patent  to  a  lode  mining  claim 
may  embrace  ground  lying  on  opposite  sides  of  an 
intersecting  millsite,  with  the  proviso,  however,  that 
the  lode  or  vein  upon  which  the  location  is  based  has 
been  discovered  in  both  parts  of  the  lode  location 
which  were  not  in  conflict  with  the  millsite."" 

The  courts  have  approached  the  question  determined 
in  the  case  of  the  Hidee  lode  cautiously,  and  as  yet  the 
supreme  court  of  the  United  States  has  not  spoken  the 
final  word  on  this  precise  point. 

The  circuit  court  of  appeals  for  the  ninth  circuit 
upon  one  occasion,  where  the  precise  question  was  not 
necessarily  involved,  stated  the  rule  laid  down  by  the 
secretary  of  the  interior  without  comment.^  In  a  sub- 
sequent case,  where  the  point  was  directly  raised,  but 
not  necessary  to  be  decided,  as  the  ultimate  determina- 
tion was  reached  upon  grounds  not  involving  the  ques- 
tion, the  same  court,  after  announcing  the  doctrine  of 
the  Del  Monte    case,    said:  "And    perhaps  the  same 

9"  Eule  reannounced  in  Mono  Fraction  Lode  Claim,  31  L.  D.  122; 
Belligerent  and  Other  Lodes,  35  L.  D.  22. 

98  Alice  Lode  Mining  Claim,  30  L.  D,  481. 

89  Bimetallic  Lode,  15  L,  D.  309. 

100  Paul  Jones  Lode,  31  L.  D.  359. 

1  Bunker  Hill  &  Sullivan  M.  &  C.  Co.  v.  Empire  State-Idaho  M. 
&  D.  Co.,  109  Fed.  538,  542,  48  C.  C.  A.  665,  21  Morr.  Min.  Kep.  317. 


847       SURFACE  CONFLICTS  WITH  PRIOR  PATENTS.     §  363a 

thing  may  be  done  on  patented  claims  where  the  lines 
are  established  openly  and  peaceably."  * 

The  supreme  court  of  Colorado,  in  the  case  of  Davis 
V.  Shepherd"  cited  the  Del  Monte  case  as  authority  for 
sustaining  the  right  of  a  junior  locator  to  lay  his  lines 
over  the  senior  claim,  and  the  report  of  the  case  shows 
that  the  senior  claim  was  patented.  But  whether  the 
junior  location  was  made  prior  to  the  patent  is  not 
disclosed. 

The  supreme  court  of  California  held  a  location  valid 
as  to  ground  free  of  conflict  with  prior  patented  agri- 
cultural lands,  although  all  the  monuments  were 
placed  on  patented  lands,  discovery  having  been  made 
in  land  clear  of  conflict.' 

The  supreme  court  of  Montana  expressed  grave 
doubts  as  to  the  soundness  of  the  secretary's  decision 
in  the  Hidee  case.  While  conceding  the  force  of  the 
doctrine  of  the  Del  Monte  case  as  applied  to  junior  loca- 
tions overlapping  prior  unpatented  claims,  it  fails  to 
find  in  that  case  any  support  for  the  contention  that 
the  junior  locator  may  have  that  privilege  with  refer- 
ence to  a  senior  patented  claim.     Said  that  court: — 

After  patent  has  issued,  the  legal  title  to  the  land 
conveyed  by  it  has  passed  wholly  from  the  govern- 
ment. The  holder  of  this  title  is  wholly  beyond  the 
jurisdiction  of  the  land  department;  and  it  would 
seem  that  no  one  can  initiate  by  trespass  upon  his 
tract  any  right  whatever,  whether  it  be  committed 
ignorant ly  or  not If  the  law  is  as  counsel  con- 
tend, then  a  patent  does  not  convey  an  absolute 
estate,  but  only  a  qualified  fee,  and  leaves  the  laud 
still  subject  to  some  rights  in  the  government,  a  doc- 

2  Empire   State-Idaho  M.   &  D.   Co.   v.   Bunker   Hill   &   Sullivan   M. 
&  C.  Co.,  114  Fed.  417,  419,  52  C.  C.  A.  219,  22  Morr.  Min.  Kep.  104. 
2a  31  Colo.  141,  72  Pac.  57,  22  Morr.  575. 
8  McElligott  Y.  Krogh,  151  Cal.  126,  90  Pac.  823,  826. 


§  363a  THE  SURFACE   COVERED   BY   THE   LOCATION.  848 

trine  for  whicli  there  seems  to  be  no  warrant  in  the 
statute.  So  long  as  the  land  is  not  patented,  the  legal 
title  is  still  in  the  government,  and  it  may  be  argued 
with  some  force  that  while  held  under  location 
merely,  it  is  still  within  the  jurisdiction  of  the  land 
department,  and  for  that  reason  it  is  within  the  prov- 
ince of  its  authority  to  say  that  a  junior  locator 
may  lawfully  go  upon  it  and  mark  his  boundaries 
and  erect  his  monuments  upon  its  surface  in  order 
to  initiate  rights  in  lands  not  carried  by  it.* 

We  do  not  understand,  however,  how  the  United 
States  government  may  convey  any  right  to  lands  by 
consent  of  an  adjoining  owner  under  patent  which  it 
could  not  convey  without  such  consent.® 

The  case  in  which  the  language  was  used  was  an 
extreme  one,  wherein  the  doctrine  of  the  Del  Monte 
case,  as  well  as  the  Hidee  case,  was  put  to  a  very  severe 
test.  But  as  the  questions  there  involved  were  de- 
cided, "conceding  for  the  purpose  of  the  discussion" 
that  the  rule  announced  in  the  Hidee  case  was  a  cor- 
rect exposition  of  the  law,  it  cannot  be  said  that  the 
decision  of  the  Montana  court  is  a  precedent  which 
condemns  the  Hidee  rule  where  invoked  in  a  proper 
case. 

The  application  of  these  rules  will  confront  us  when 
we  come  to  deal  with  the  law  on  the  subject  of  extra- 
lateral  rights,  where  we  shall  have  occasion  to  recur 
to  this  subject.  The  foregoing  are  all  the  expressions 
of  both  courts  and  land  department  touching  these 
questions  which  have  come  under  our  observation. 
We  have  here  been  dealing  exclusively  with  the  privi- 
leges of  junior  lode  claimants.  Some  discussion  of 
these  principles  will  be  necessary  when  we  reach  the 
subject  of  placer  claims. 

4  State  V.  District  Court,  25  Mont.  504,  572,  65  Pac.  1020,  1024. 
6  Id.,  1025. 


849  SURFACE    MUST   INCLUDE   APEX.  §364 

§  364.  Surface  must  include  apex  of  vein — Location 
on  the  dip. — There  can  be  no  question  but  that  the  act 
of  July  26,  1866,  contemplated  a  linear  location  along 
the  course  of  the  vein  as  exposed  at  the  surface,  where 
there  was  an  outcropping  exposure,  or  along  the  top  or 
upper  edge  of  the  vein  nearest  to  the  surface,  where 
there  was  no  outcrop.' 

The  existing  laws  require  that  the  top,  or  apex,  of 
the  vein,  to  some  extent  at  least,  should  be  found  within 
the  limits  of  the  location,  as  defined  on  the  surface,^  at 
least  as  a  condition  precedent  to  the  enjoyment  of  the 
extralateral  right.  We  do  not  feel  justified  in  assert- 
ing that  a  location  on  the  dip  of  the  vein  which  does 
not  include  any  part  of  the  apex  is  under  all  circum- 
stances void.  It  might  happen  that  the  true  apex  of 
a  vein  is  embraced  within  a  prior  grant  of  such  a 
character  as  to  prevent  the  owner  from  following  the 
vein  on  its  downward  course  out  of  his  vertical  bound- 
aries, conditions  such  as  are  outlined  or  suggested  in  a 
preceding  section;®  or  the  deposit  may  be  a  bedded 
vein,  occupying  a  horizontal  position  in  the  mass  of  the 
mountain,  without  any  definable  apex,^  or  where  the 
inclination  of  the  vein  from  the  horizontal  is  so  slight 

8  Eureka  Case,  4  Saw.  302,  Fed.  Cas.  No.  4548,  9  Morr.  Min.  Rep, 
578;  McCormick  v.  Varnes,  2  Utah,  355;  Wolfley  v.  Lebanon,  4  Colo. 
112. 

7  Flagstaff  M.  Co.  v.  Tarbet,  98  U.  S.  463,  467,  25  L.  ed.  253,  9  Morr. 
Min.  Eep.  607;  Argentine  M.  Co.  v.  Terrible  M.  Co.,  122  U.  S.  478,  485, 
7  Sup.  Ct.  Rep.  1356,  30  L.  ed.  1140,  17  Morr.  Min.  Rep.  109;  Iron 
S.  M.  Co.  V.  Elgin,  118  U.  S.  196,  208,  6  Sup.  Ct.  Eep.  1177,  30  L.  ed. 
98,  15  Morr.  Min.  Eep.  641;  Doe  v.  Sanger,  83  Cal.  203,  23  Pac.  365, 
368,  17  Morr.  IMin.  Eep.  298;  Watervale  v.  Leach,  4  Ariz.  34,  33  Pac. 
418,  420,  17  Morr.  Min.  Eep.  568;  King  t.  Amy  &  Silversmith  M.  Co.,  9 
Mont.  543,  24  Pac.  200,  205,  16  Morr.  Min.  Eep.  38. 

8  Ante,  §  312a. 

9  See  Homestead  M.  Co.,  29  L.  D.  689 ;  Jack  Pot  Lode  Mining  Claim, 
84  L.   D.   470;   Belligerent  and   Other  Lodes,  35  L.   D.  22. 

Lindley  on  M. — 54 


§  364  THE   SURFACE   COVERED   BY   THE   LOCATION.  850 

as  to  require  extensive  development  in  order  to  ascer- 
tain wliicli  is  the  top  and  which  the  side  edge  or 
bottom  of  the  vein,  as  illustrated  in  the  South  Dakota 
and  Idaho  cases,  discussed  in  section  three  hundred 
and  ten,  and  to  some  degree  in  the  Leadville  cases, 
referred  to  in  section  three  hundred  and  eleven. 
Under  such  conditions  it  is  quite  possible  that  by  a 
surface  location  not  covering  the  true  apex  the  locator 
might  acquire  the  exclusive  right  to  the  surface  and 
the  underlying  vein  as  against  all  persons  save  those 
who  fortuitously  covered  the  true  apex  in  such  a  way 
as  to  confer  upon  them  the  right  to  laterally  pursue  the 
vein  underneath  the  surface  of  the  claim  overlying  the 
dip.^°  We  are  now  considering  the  general  rule  as  an- 
nounced by  the  courts,  whose  opinions  do  not  neces-  ^ 
sarily  deal  with  all  conceivable  exceptions.  A  discus- 
sion of  possible  exceptions  involves  a  consideration  of 
extralateral-right  problems  which  must  be  reserved  for 
future  consideration. 

This  general  rule  may  be  thus  concisely  stated:  A 
location  cannot  be  made  on  the  middle  of  a  vein  or 
otherwise  than  on  the  top,  or  apex." 

As  was  said  by  Judge  Hallett  in  one  of  the  early 
Leadville  cases : — 

It  is  a  part  of  the  statute  law  of  the  United  States 
that  locations  shall  be  upon  the  top  and  apex  of  the 

10  Montana  Ore  Purchasing  Co.  v.  Boston  &  M.  Cons.  C.  &  S.  Co., 
27  Mont.  536,  71  Pac.  1005,  1007;  Boston  &  Mont.  Cons.  Co.  v.  Mon- 
tana Ore  P.  Co.,  188  U.  S.  632,  638,  23  Sup.  Ct.  Eep.  440,  47  L.  ed. 
626;  Heinze  v.  Boston  &  Montana  Cons.  C.  &  S.  M.  Co.,  30  Mont.  484, 
77  Pac.  421,  422. 

11  Iron  S.  M.  Co.  v.  Murphy,  2  McCrary,  121,  3  Fed.  368,  373,  1 
Morr.  Min.  Eep.  548;  Stevens  v.  Williams,  1  Morr.  Min.  Eep.  557, 
Fed.  Cas.  No.  13,414;  Leadville  M.  Co.  v.  Fitzgerald,  4  Morr.  Min. 
Rep.  380,  Fed.  Cas.  No.  8158;  Larkin  v.  Upton,  144  U.  S.  19,  21,  12 
Sup.  Ct.  Eep.  614,  36  L.  ed.  330,  17  Morr.  Min.  Eep.  465;  Colorado 
Central  C.  M.  Co.  v.  Turck,  50  Fed.  888,  895,  2  C.  C.  A.  67;  S.  C,  on 
rehearing,  54  Fed.  237,  4  C.  C.  A.  31S. 


851  SURFACE  MUST  INCLUDE  APEX.  §  364 

vein ;  .  .  .  .  that  being  done,  gives  the  miner  the  whole 

vein/'  and  that  the  locator  mnst  find  where  the  top 

or  apex  is  and  make  his  location  with  reference  to 

that.^' 

It  is  true,  he  subsequently  charged  a  jury  that  a 
junior  location  along  the  line  of  the  top,  or  apex,  could 
not  prevail  against  a  senior  location  on  the  dip; "  but 
this  last  ruling  is  not  in  accord  with  the  decisions  of 
the  supreme  court  of  the  United  States,  as  we  shall 
have  occasion  to  point  out  in  a  subsequent  section." 

The  question  of  priority  is  an  important  and  material 
inquiry  only  where  there  are  overlapping  surfaces,  or 
where  the  contending  parties  have  some  portion  of  the 
apex  of  the  same  vein  and  a  conflict  arises  between 
them  involving  extralateral  bounding  planes  under- 
neath the  surface,  such  as  are  found  in  the  Del  Monte 
case,''  in  the  Tyler-Last  Chance  litigation,''  in  the 
Stemwinder-Emma-Last  Chance  litigation,'*  and  other 
cases  to  be  noted  under  the  topic  of  extralateral 
rights." 

Any  portion  of  the  apex  on  its  course  will  be  suffi- 
cient to  support  the  location,'"  but  upon  the  extent  and 

12  Iron  S.  M.  Co.  v.  Murphy,  2  McCrary,  121,  3  Fed.  3G8,  371,  1 
Morr.  Min.  Eep.  548,  550,  551. 

13  Stevens  v.  Williams,  1  Morr.  Min.  Eep.  557,  562,  Fed.  Cas.  No. 
13,414. 

14  Van  Zandt  v.  Argentine  M.  Co.,  8  Fed.  725,  728,  2  McCrary,  159, 
4  Morr.  Min.  Rep.  441. 

16  Post,  §611. 

16  171  U.  S.  55,  18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min. 

Eep.  370. 

17  54  Fed.  284,  4  C.  C.  A.  329;  71  Fed.  848,  18  Morr.  Min.  Rep.  303; 
61  Fed.  557,  9  C.  C.  A.  613;  157  U.  S.  683,  15  Sup.  Ct.  Rep.  733,  39 
L.  ed.  859,  18  Morr.  Min.  Rep.  205. 

18  149  U.  S.  787,  13  Sup.  Ct.  Rep.  1052,  37  L.  ed.  941,  960. 

19  Post,  §  596. 

20  Larkiu  v.  Upton,  144  U.  S.  19,  23,  12  Sup.  Ct.  Rep.  614,  36  L. 
ed.  330,  17  Morr.  Min.  Rep.  465. 


§  364  THE   SURFACE   COVERED  BY   THE   LOCATION,  852 

course  of  this  apex  witMn  tlie   location  depends  the 
extent  of  rights  acquired/^ 
As  was  said  by  the  supreme  court  of  Montana, — 

On  principle  the  identity  of  the  apex  of  a  vein 
with  its  spurs  and  extensions  must  be  the  crucial 
test  by  which  are  to  be  fixed  the  proprietary  rights 
to  that  vein  and  the  mineral  therein.^^ 

Sometimes  it  happens  that  a  prior  locator  fails  to 
include  the  entire  width  of  the  apex  of  the  vein  within 
his  boundaries,  and  that  such  apex  is  bisected  along  its 
course  by  a  side-line  common  to  two  locations.  While 
in  such  cases  some  of  the  courts  have  held  that  both 
locations  are  valid  to  the  extent  of  everything  within 
their  vertical  boundaries,  but  that  neither  claim  has 
any  extralateral  right,^^  others  award  the  extralateral' 
right  to  the  prior  location.^*  Still  others  award  an 
extralateral  right  to  both,  that  of  the  junior  taking 
effect  within  the  plane  of  his  extended  end-lines  after 
they  pass  beyond  the  conflict  with  those  of  the  one  hav- 

21  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  66, 
67,  18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Eep.  303;  Stevens 
V.  Williams,  1  McCrary,  480,  1  Morr.  Min.  Rep.  566,  Fed.  Cas.  No-. 
13,413;  Cosmopolitan  M.  Co.  v.  Foote,  101  Fed.  518,  20  Morr.  Min. 
Rep.  497,  and  cases  there  cited;  Ajax  Gold  Mining  Co.  v.  Hilkey,  31 
Colo.  131,  102  Am.  St.  Rep.  23,  62  L.  E.  A.  555,  72  Pac.  447,  22  Morr. 
Min.  Rep.  585. 

22  Butte  &  Boston  M.  Co.  v.  Society  Anonyme  des  Mines,  23  Mont. 
177,  75  Am.  St.  Rep.  505,  58  Pac.  Ill,  113. 

23  Hall  V.  Equator,  Carpenter's  Mining  Code,  3d  ed.,  p.  65;  Ray- 
mond's "Law  of  the  Apex."  The  case  is  not  reported  elsewhere.  See 
quotations  from  this  case  under  the  Broad  lode  discussion,  post,  §  583. 

24  Bullion  Beck  &  Champion  M.  Co.  v.  Eureka  Hill  M.  Co.,  5  Utah, 
3,  11  Pac.  515,  524;  St.  Louis  M.  &  M.  Co.  v,  Montana  Limited,  104 
Fed.  664,  668,  44  C.  C.  A.  120,  56  L.  R.  A.  725,  21  Morr.  Min.  Rep.  57; 
Bunker  Hill  &  Sullivan  M.  &  C.  Co,  v.  Empire  State-Idaho  M.  &  D,  Co.^ 
we  Fed,  471,  473. 


853  SURFACE  MUST  INCLUDE  APEX.  §  364 

ing  priority,"  a  question  fully  discussed  in  another 
section.^'  But  all  courts  agree  that  such  a  location 
covering  a  part  of  the  width  of  the  apex  is  valid, 
to  some  extent  at  least.  They  differ  only  as  to  the 
extent  of  the  rights  conferred  on  the  respective  loca- 
tors. We  shall  necessarily  elaborate  the  discussion  of 
the  ''broad  lode"  question  when  dealing  with  the  sub- 
ject of  extralateral  rights."  Questions  of  this  char- 
acter are  so  intimately  associated  with  other  problems 
as  to  render  it  impossible  to  consider  them  without 
anticipating,  to  some  degree  at  least,  their  applica- 
tion in  connection  with  the  subjects  with  which  they 
are  blended. 

It  has  been  strenuously  urged  that  a  location,  in 
order  to  enjoy  any  extralateral  privileges,  should  be 
so  laid  on  the  surface  as  to  cover  the  true  course  of  the 
vein  on  a  level, — i.  e.,  the  engineer's  strike,  as  explained 
in  a  previous  section,^* — regardless  of  the  course  of 
the  apex  at  or  near  the  surface;  that  the  locator  must 
before  perfecting  his  location  ascertain  the  strike,  or 
course,  of  the  vein  on  a  level,  and  so  lay  his  end-lines 
that  in  following  the  vein  in  its  downward  course  he 
would  not  follow  it  more  along  the  course  than  upon 
the  true  dip.  This  contention,  however,  has  thus  far 
received  no  encouragement  from  the  courts. 

It  was  said  by  the  supreme  court  of  the  United  States 
in  the  Flagstaff  case  (italics  are  ours) : — 

We  do  not  mean  to  say  that  a  vein  must  neces- 
sarily crop  out  upon  the  surface  in  order  that  loca- 

26  Empire  State-Idaho  M.  &  D.  Co.  v.  Bunker  Hill  &  Sullivan  M. 
&  C.  Co.,  114  Fed.  417,  419,  52  C.  C.  A.  219,  22  Morr.  Min,  Eep.  104, 
reversing  106  Fed.  471,  supra. 

28  Post,  §  596. 

27  Post,  §  583. 

28  §  319. 


§  364  THE   SURFACE   COVEEED   BY   THE   LOCATION.  854 

tions  may  be  properly  laid  upon  it.  If  it  lies  entirely 
beneath  the  surface  and  the  course  of  its  apex  can  be 
ascertained  by  sinking  shafts  at  different  points, 
such  shafts  may  be  adopted  as  indicating  the  posi- 
tion and  course  of  the  vein,  and  locations  may  be 
properly  made  on  the  surface  above  it  so  as  to  secure 
a  right  to  the  vein  beneath.  But  where  the  vein  does 
crop  out  along  the  surface,  or  is  so  slightly  covered 
by  foreign  matter  that  the  course  of  its  apex  can  be 
ascertained  by  ordinary  surface  exploration,  we 
think  that  the  act  of  congress  requires  that  this 
course  should  be  substantially  followed  in  laying 
claims  and  locations  upon  it.  Perhaps  the  law  is  not 
so  perfect  in  this  regard  as  it  might  be;  perhaps  the 
true  course  of  a  vein  should  correspond  with  its 
strike  or  the  line  of  a  level  run  through  it;  but  this 
can  rarely  be  ascertained  until  considerable  work 
has  been  done  and  after  claims  and  locations  have 
become  fixed.  The  most  practicable  rule  is  to  re- 
gard the  course  of  the  vein  as  that  which  is  indicated 
by  surface  outcrop,  or  surface  explorations  and 
workings.  It  is  on  this  line  that  claims  will  naturally 
be  laid,  whatever  be  the  character  of  the  surface, 
whether  level  or  inclined.^^ 

The  rule  is  well  settled  that  the  extralateral  right  to 
a  vein  or  lode  outcropping  at  the  surface  is  fixed  by  the 
course  of  the  vein  or  lode  at  the  surface  and  not  by  the 
course  on  a  level.^° 

The  fallacy  of  a  contrary  contention  may  be  demon- 
strated   by    the    illustration    of  a    hypothetical  case. 

29  Flagstaff  V.  Tarbet,  98  U.  S.  463,  469,  25  L.  ed.  253,  9  Morr.  Min. 
Eep.  607. 

30  Last  Chance  M.  Co.  v.  Bunker  Hill  &  S.  M.  &  C.  Co.,  131  Fed.  579, 
589,  66  C.  C.  A.  299;  appeal  dismissed,  200  U.  S.  613,  26  Sup.  Ct.  Eep. 
754,  50  L.  ed.  620;  certiorari  denied,  200  U.  S.  617,  26  Sup.  Ct,  Bep. 
754,  50  L.  ed.  622;  Empire  State-Idaho  M.  &  D.  Co.  v.  Bunker  Hill 
&  Sullivan  M.  &  C.  Co.,  131  Fed.  591,  596,  66  C.  C.  A.  99;  certiorari 
denied,  200  U.  S.  617,  26  Sup.  Ct.  Rep.  754,  50  L.  ed.  622.  See,  also, 
Bunker  Hill  &  Sullivan  M.  &  C.  Co.  v.  Empire  State-Idaho  M.  &  D.  Co.,  134 
Fed.  268,  272. 


855 


SURFACE   MUST   INCLUDE  APEX. 


§364: 


Figure  34  represents  two  locations — A  and  B.  The 
outcropping  vein  is  exposed  on  a  steep  hillside,  so  that 
the  course  of  the  outcropping  apex  is  widely  divergent 
from  that  of  the  true  course  of  the  vein  on  a  level, — 
i.  e.,  the  strike-line.  This  is  not  an  uncommon  occur- 
rence. It  is  plain  that  the  course  of  the  apex,  x-y-z, 
is  the  ''true  course  of  the  vein  upon  the  surface." 
Let  X  represent  the  point  of  discovery,  and  let  the 
strike  be  determined  by  means  of  a  short  discovery 
tunnel,  x-w.  The  question  suggested  is.  Should  the 
discoverer  on  making  his  location  follow  the  line  of 
strike  as  in  location  A,  ignoring  the  segment  of  the 
apex,  y-z,  or  should  he  follow  the  apex  as  in  location 


B? 


FiGUKE   34. 


If  he  selected  A,  he 
would  lose  all  rights 
■on  the  vein  after  it 
departed  out  of  the 
side-line  at  y.  This 
has  been  conclusively 
determined  by  the 
courts.^^ 

Sufficient  has  been 
said  to  demonstrate 
that  in  making  loca- 
tions on  the  surface 
regard  should  be  had 
to  the  position  of  the 
apex,  outcropping  or 


31  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  65, 
18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Eep.  370;  Clark  v. 
Fitzgerald,  171  U.  S.  92,  18  Sup.  Ct.  Eep.  941,  43  L.  ed.  87;  Parrot 
Silver  and  Copper  Co.  v.  Heinze,  25  Mont.  139,  87  Am.  St.  Rep.  386, 
53  L.  R.  A.  491,  64  Pac.  326,  328,  21  Morr.  Min.  Rep.  232;  Ajax  Gold 
Mining  Company  v.  Hilkey,  31  Colo.  131,  102  Am.  St.  Rep.  23,  62 
L.  R.  A.  555,  72  Pac.  447,  22  Morr.  Min.  Rep.  585. 


§  364  THE   SURFACE   COVERED   BY   THE   LOCATION.  856 

blind,  as  it  actually  exists  in  the  ground  located,  if  tlie 
locator  desires  to  secure  the  maximum  rights  on  the 
vein  at  and  underneath  the  surface  as  contemplated 
by  the  mining  laws.  His  rights  will  suffer  diminution 
in  proportion  to  his  disregard  of  this  requirement. 

Whenever  a  party  has  acquired  the  title  to  ground 
within  whose  surface  area  is  the  apex  of  a  vein  with 
a  few  or  many  feet  along  its  [the  apexes]  course  or 
strike,  a  right  to  follow  the  vein  on  its  dip  for  the 
same  length  ought  to  be  awarded  to  him  if  it  can  be 
done,  and  only  if  it  can  be  done  under  any  fair  and 
natural  construction  of  the  language  of  the  statute. 
If  the  surface  of  the  ground  was  everywhere  level 
and  veins  constantly  pursued  a  straight  line,  there 
would  be  little  difficulty  in  legislation  to  provide  for 
all  contingencies,  but  mineral  is  apt  to  be  found  in 
mountainous  regions  where  great  irregularity  of  sur- 
face exists  and  the  course  or  strike  of  veins  is  as 
irregular  as  the  surface,  so  that  many  cases  may 
arise  in  which  statutory  provisions  will  fail  to  se- 
cure to  a  discoverer  of  a  vein  such  an  amount  thereof 
as  equitably  it  would  seem  he  ought  to  receive.^^ 

It  requires  no  argument  to  demonstrate  that  in  the 
use  of  the  terms  "course"  and  ''strike  of  the  vein," 
appearing  in  the  foregoing  quotation,  the  court  had  no 
reference  to  the  technical  engineer's  strike  of  the  vein 
or  to  the  course  of  the  vein  on  a  level.  "Strike,"  as 
we  have  heretofore  explained,  is  the  equivalent  to  the 
course  on  a  level.^^  Where  the  ground  is  undulating 
there  can  be  no  "strike"  of  an  apex.  The  court  in 
its  opinion  referred  to  the  course  of  the  apex.  This 
is  not  only  manifest  from  the  entire  context,  but  is 

32  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  66, 
18  Sup.  Ct.  Eep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Eep.  370. 
S3  Ante,  §  319. 


857  THE  END-LINES.  §  365 

emphasized  in  another  portion  of  the  opinion,''''  where 
the  court  quotes  approvingly  from  a  decision  by  Judge 
Beatty,  United  States  district  judge  of  Idaho,  sitting 
as  circuit  judge,  as  follows  (italics  are  ours) : — 

Upon  the  fact  that  an  apex  is  within  the  surface 
lines  all  his  underground  rights  are  based.  When, 
then,  he  owns  an  ai^ex,  whether  it  extends  through 
the  entire  or  through  but  a  part  of  his  location,  it 
should  follow  that  he  owns  an  equal  length  of  the 
ledge  to  its  utmost  depth.  These  are  the  important 
rights  granted  by  the  law.  Take  them  away  and  we 
take  all  from  the  law  that  is  of  value  to  the  miner." 

§  365.  The  end-lines. — The  function  of  end-lines 
may  be  said  to  be  twofold: — 

(1)  They  stop  the  pursuit  of  the  vein  on  its  strike;  " 

(2)  When  properly  constructed  with  reference  to 
the  located  lode,  permitting  the  exercise  of  the  extra- 
lateral  right,  they  may  be  produced  indefinitely  in 
their  own  direction,  so  that  vertical  planes  drawn 
downward  through  them,  as  so  produced,  car\^e  out  a 
segment  of  the  vein  throughout  its  entire  depth,  the 
ownership  of  which  becomes  vested  in  the  locator," 
provided  that  the  end-line  planes  as  extended  do  not 
conflict  with  the  extralateral-right  planes  of  a  prior 
locator. 

While  there  is  liberty  of  width  within  the  statutory 
limit,  the  law  clearly  contemplates  that  the  end-lines 
shall  have  substantial  existence  in  fact,  and  in  length 

34  171  U.  S.  91,  18  Sup.  Ct.  Rep.  895,  43  L,  ed.  72,  19  Morr.  Min. 
Kep.  370. 

35  Tyler  M.  Co.  v.  Last  Chance  M.  Co.,  71  Fed.  848,  851.  See,  also, 
Ajax  Gold  Mining  Co.  v.  Hilkey,  31  Colo.  131,  102  Am.  St.  Kep.  23, 
72  Pac.  447,  449,  62  L.  K.  A.  555,  22  Morr.  Min.  Eep.  585. 

36  Ajax  Gold  M.  Co.  v.  Hilkey,  31  Colo.  131,  102  Am.  St.  Eep.  23, 
72  Pac.  447,  449,  62  L.  R  A.  555,  22  Morr.  Min.  Rep.  585. 

37  Ajax  Gold  M.  Co.  v.  Hilkey,  31  Colo.  131,  102  Am.  St.  Rep.  236, 
72  Pac.  447,  449,  62  L.  R.  A.  555,  22  Morr.  Min.  Rep.  585. 


§  365  THE   SURFACE   COVERED   BY   THE   LOCATION.  858 

shall  reasonably  comport  with  the  width  of  the  claim 
as  located.^^ 

The  location  of  a  mining  claim,  as  made  and  defined, 
must  control  not  only  the  rights  of  the  claimant  to  the 
vein  or  lode  within  its  surface,  but  also  any  extralateral 
rights.  The  locator  must  stand  upon  his  own  location, 
and  can  take  only  what  it  will  give  him  under  the  law. 
The  courts  cannot  relocate  his  claim  and  make  new  side 
or  end  lines.'® 

As  heretofore  observed,"  the  act  of  1866  did  not  in 
terms  mention  end-lines,  although  in  the  sense  that 
they  were  necessary  to  determine  the  right  to  pursue 
the  vein  on  the  longitudinal  or  horizontal  course,  they 
were  implied."  They  were  not  required  to  be  par- 
allel." 

Under  the  act  of  May  10,  1872,  however,  their  sub- 
stantial parallelism,  or  at  least  their  nondivergence  in 

38  Jack  Pot  Lode  Claim,  34  L.  D.  470;  Belligerent  &  Other  Lodes,  35 
L.  D.  22. 

39  King  V.  Amy  &  Silversmith  M.  Co.,  152  U.  S.  222,  228,  14  Sup. 
Ct.  Eep.  510,  38  L.  ed.  419,  18  Morr.  Min.  Eep.  76;  Del  Monte  M.  & 
M.  Co.  V.  Last  Chance  M.  Co.,  171  U.  S.  55,  8S,  18  Sup.  Ct.  Eep.  895, 
43  L.  ed.  72,  19  Morr.  Min.  Eep.  370;  Daggett  v.  Yreka  M.  &  M.  Co., 
149  Cal.  357,  86  Pac.  968. 

40  Ante,  §  58. 

*i  Eureka  Case,  4  Saw.  302,  Fed.  Cas.  No.  4548,  9  Morr.  Min.  Eep. 
578. 

♦2  Iron  S.  M.  Co.  v.  Elgin  M.  Co.,  118  U.  S.  196,  208,  6  Sup.  Ct.  Eep. 
1177,  30  L.  ed.  98,  15  Morr.  Min.  Eep.  641;  Walrath  v.  Champion,  63 
Fed.  552,  556;  Cons.  Wyoming  v.  Champion,  63  Fed.  540,  550,  18  Morr. 
Min.  Eep.  113;  Carson  City  G.  &  S.  M.  Co.  v.  North  Star  M.  Co.,  73 
Fed.  597,  599;  S.  C,  83  Fed.  658,  669,  28  C.  C.  A.  333,  19  Morr.  Min. 
Eep.  US;  Eureka  Case,  4  Saw.  302,  309,  Fed.  Cas.  No.  4548,  9  Morr. 
Min,  Eep.  578;  Eichmoud  M.  Co.  v.  Eureka  M.  Co.,  103  U.  S.  839,  847, 
26  L.  ed.  557,  9  Morr.  Min.  Eep.  634;  Argonaut  M.  Co.  v.  .Kennedy 
M.  &  M.  Co.,  131  Cal.  15,  28,  82  Am.  St.  Eep.  317,  63  Pac.  148,  152, 
21  Morr.  Min.  Eep.  163;  Central  Eureka  M.  Co.  v.  East  Central  Eureka 
M.  Co.,  146  Cal.  147,  9  L.  E.  A.,  N.  S.,  940,  79  Pac.  834,  835;  affirmed, 
204  U.  S.  266,  27  Sup.  Ct.  Eep.  25S,  51  L.  ed.  476. 


859  THE  END-LINES.  §  365 

the  direction  of  the  dip,  is  an  absolute  essential  to  the 
right  of  extralateral  pursuit."  It  has  been  said  that 
the  provisions  of  this  act  as  to  parallelism  are  merely 
directory,  and  that  no  consequence  is  attached  to  a 
deviation  from  its  direction.**  But  this  is  undoubt- 
edly an  erroneous  view.*' 

A  location  with  nonparallel  end-lines  is  not  neces- 
sarily wholly  void.  There  is  liberty  of  surface  form 
within  the  statutory  limits.*®  If  other  conditions  are 
complied  with,  such  a  location  will,  subject  to  the  dip 
rights  of  others  who  have  properly  located  on  the  apex, 
hold  everj'thing  within  vertical  planes  drawn  through 
the  surface  boundaries.  The  rights  conferred,  how- 
ever, by  such  a  location  are  not  so  great  as  in  case  of 
one  having  the  end-lines  parallel.  The  consequences 
of  nonparallelism  of  end-lines  will  be  fully  presented 
in  a  subsequent  chapter,  when  dealing  with  the  subject 
of  extralateral  rights.*^ 

While  it  may  be  true  that  the  highest  type  of  the 
ideal  or  theoretical  location  may  suggest  that  the  end- 
lines  of  a  location  should  be  at    right  angles  to  the 

«8  Daggett  V.  Yreka  M.  &  M.  Co.,  149  Cal.  357,  86  Pac.  968,  974. 

**  Eureka  Case,  4  Saw.  302,  319,  Fed.  Cas.  No.  4548,  9  Morr.  Min. 
Eep.  578;  Horswell  v.  Kuiz,  67  Cal.  Ill,  7  Pac.  197,  15  Morr.  Min.  Rep. 
488. 

«  Iron  S.  M.  Co.  v.  Elgin  M.  Co.,  118  U.  S.  196,  208,  6  Sup.  Ct.  Rep. 
1177,  30  L.  ed.  98,  15  Morr.  Min.  Rep  641;  Argonaut  M.  Co.  v.  Ken- 
nedy M.  Co.,  131  Cal.  15,  23,  82  Am.  St.  Rep.  317,  63  Pac.  148,  152,  21 
Morr.  Min.  Rep.  163.  The  Argonaut-Kennedy  case  was  considered 
by  the  supreme  court  of  the  United  States,  but  the  question  here  dis- 
cussed was  not  considered.  189  U.  S.  1,  23  Sup.  Ct.  Rep.  501,  47  L.  ed. 
685. 

*e  Walrath  v.  Champion  M.  Co.,  171  U.  S.  293,  312,  18  Sup.  Ct.  Rep. 
909,  43  L.  ed.  170,  19  Morr.  Min.  Rep.  410;  Gibson  v.  Hjul,  32  Nev. 
360,  108  Pac.  759. 

«  Post,  §  582. 


§  365         .     THE  SURFACE   COVERED   BY   THE   LOCATION.  860 

course  of  the  vein,*^  there  is  nothing  in  the  law  which 
requires  it,  either  expressly  or  by  implication.  In  f  act^ 
locations,  as  a  rule,  which,  as  we  have  heretofore  ex- 
plained, are  required  to  conform  to  the  surface  course 
of  the  apex,  could  rarely  be  made  to  also  conform  to 
such  ideal,  without  the  loss  of  substantial  rights  on 
the  vein.*^  While  the  ideal  location  may  suggest  the 
form  shown  in  figure  35,  where  the  end-lines  cross  the 
lode  at  right  angles  to  its  general  course,  a  location 


Figure  35. 
marked  on  the  ground  with  end-lines  crossing  the  apex  ^ 
of  the  lode  at  acute  or  obtuse  angles,  as  indicated  in 
figures  36  and  37,  is  just  as  valid  and  complete,  and 


:\-     ± 


FiGUEE  36.  Figure  37. 

the  extent  of  property  rights  conferred  thereby  just 
as  great,  as  in  the  ideal  location,  because  the  end-lines 
cross  the  lode,  and  are  parallel.  The  land  officers  have 
no  right  to  require  that  an  end-line  shall  make  a  right 
angle,  or  any  other  particular  angle,  with  the  general 
direction  of  the  vein.  It  is  the  locator's  privilege  to 
give  such  direction  to  his  end-lines  as  he  pleases,  so 
long  as  they  are  across  the  apex  of  the  vein,  are 
parallel  to    each  other,    and  the    length  of  the  lode 

48  See  opinion  in  Daggett  v.  Treka  M.  &  M.  Co.,  149  Cal.  357,  85 
Pac.  968,  where  the  court  says  arguendo:  "Miners  know  that  the  side- 
lines of  a  claim  ought  to  be  parallel  to  its  strike  and  its  end-lines  at 
right  angles  to  its  strike." 

49  Ante,%  364. 


g^l  THE  END-LINES.  §  365 

measured  between  them,  on  direct  line  between  tbe 
extreme  points  on  the  vein  within  the  location,  does 
not  exceed  the  statutory  limit  of  fifteen  hundred  feet." 
While  the  statute  requires  parallelism  of  the  end- 
lines,  and  the  courts  have  held  that  they  may  not  be 
laid  so  divergent  as  to  include  more  in  length  upon 
the  dip  of  the  vein  than  is  allowed  in  length  upon 
the  surface,  neither  the  statute  nor  any  decision  to 
which  our  attention  has  been  called  defines  any  par- 
ticular angle  at  which  the  end-lines  shall  cross  the 
general  course  of  the  vein  in  order  that  the  extra- 
lateral  right  given  by  the  statute  may  exist  .... 
and  that  the  extralateral  right  conferred  by  the 
statute  may  and  does  exist  without  regard  to  the 
angle  at  which  the  end-lines  cross  the  general  course 
of  the  vein  has  been  held  by  both  the  supreme  court 
and  this  court.''^ 

There  is  nothing  in  the  mining  act  that  can  pos- 
sibly justify  the  conclusion  that  this  extralateral 
right  must  be  limited  to  forty-five  degrees  or  to  any 
other  particular  variation  from  the  true  dip." 

It  is  a  matter  of  common  knowledge  that  veins  are 
not  of  uniform  value  throughout,  but  that  frequently 
the  "pay  ore"  occurs  in  "shoots,"  at  intervals  in  the 
course  of  the  vein,  and  that  these  "shoots"  have  fre- 
quently, in  the  language  of  the  miner,  a  right  or  left 

60  Monarch  of  the  North  Mining  Claim,  8  Copp's  L.  O.  104. 

61  Last  Chance  Min.  Co.  v.  Bunker  Hill  &  Sullivan  M.  &  C.  Co., 
131  Fed.  579,  590,  66  C.  C.  A,  299;  Empire  State-Idaho  M.  &  D.  Co. 
V.  Bunker  Hill  M.  &  C.  Co.,  131  Fed.  591,  596,  66  C.  C.  A.  99;  appeal 
dismissed,  200  U.  S.  613,  26  Sup.  Ct.  Rep.  754,  50  L.  ed.  620;  certiorari 
denied,  200  U.  S.  617,  26  Sup.  Ct.  Rep.  754,  50  L.  ed.  622;  Empire 
State-Idaho  M.  &  D.  Co.  v.  Bunker  Hill  &  Sullivan  M.  &  C.  Co.,  114 
Fed.  417,  419,  52  C.  C.  A.  219,  22  Morr.  Min.  Rep.  104. 

62  Bunker  Hill  &  Sullivan  M.  &  C.  Co.  v.  Empire  State-Idaho  M.  & 
D.  Co.,  134  Fed.  268,  272. 


§  365  THE   SURFACE   COVERED   BY   THE   LOCATION.  862 

hand  "pitch."  There  is  no  reason  why  the  locator 
should  not  be  permitted  to  mark  his  end-lines,  observ- 
ing the  statutory  requirement  as  to  parallelism,  with 
regard  to  the  pitch  of  the  ore  bodies  within  the  vein, 
if  he  is  fortunate  enough  to  detect  their  existence  and 
direction  during  his  work  of  preliminary  exploration. 

If  it  be  true,  and  the  courts  so  assert,  that  the  theory 
of  the  law  requiring  this  parallelism  is,  that  the  miner 
may  have  only  as  much  of  the  lode  underneath  as  he 
has  apex  within  his  surface,®*''  then  the  object  is  ac- 
complished by  making  a  location  in  the  form  sug- 
gested by  figures  36  and  37,  as  well  as  by  that  sug- 
gested by  figure  35.  The  subsequent  locator  is  in  no 
sense  injured,  and  will  be  compelled  to  either  make  his  x 
location  conform  to  the  lines  of  the  first  discoverer  or 
take  the  chance  of  losing  a  segment  of  the  vein  by 
underground    conflict    with  the  prior   appropriator." 

As  heretofore  observed,  however,  the  failure  to  con- 
struct the  end-lines  so  that  they  are  parallel  to  each 
other  does  not  render  the  location  absolutely  void,  so 
long  as  it  is  within  the  statutory  limit.  A  location  in 
the  form  of  a  horseshoe  "  or  an  isosceles  triangle  "  will, 

63  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  85, 
18  Sup.  Ct.  Kep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370;  Doe  v. 
Sanger,  83  Cal.  203,  213,  23  Pac.  365,  368,  17  Morr.  Min.  Rep.  298; 
Carson  City  G.  &  S.  M.  Co.  v.  North  Star  M.  Co.,  83  Fed.  65&,  669,  28 
C.  C.  A.  333,  19  Morr.  Min.  Rep.  118. 

6*  Flagstaff  M.  Co.  v.  Tarbet,  98  U.  S.  463,  25  L.  ed.  253,  9  Morr. 
Min.  Rep.  607;  Eureka  Case,  4  Saw.  302,  Fed.  Cas.  No.  4548,  9  Morr. 
Min.  Rep.  578. 

56  Iron  S.  M.  Co.  v.  Elgin  M.  Co.,  118  U.  S.  196,  6  Sup.  Ct.  Rep.  1177, 
30  L.  ed.  98,  15  Morr.  Min.  Rep.  641. 

56  Montana  Co.  Limited  v.  Clark,  42  Fed.  626,  16  Morr.  Min.  Rep. 
81;  Walrath  v.  Champion  M.  Co.,  171  U.  S.  293,  312,  18  Sup.  Ct.  Rep. 
909,  43  lu  ed.  170,  19  Morr.  Min.  Rep.  410. 


863  THE  END-LINES.  §  36o 

subject  to  the  extralateral  right  of  others  who  have 
properly  located  the  apex,  hold  whatever  may  be  found 
within  vertical  planes  drawn  through  the  surface 
boundaries. 

The  requirement  as  to  parallelism  of  end-lines,  as  a 
condition  precedent  to  the  exercise  of  the  extralateral 
right,  means  that  they  should  be  parallel  throughout, 
or  at  least  should  not  diverge  in  the  direction  of  the 
dip." 

This  requirement  of  the  law  is  not  satisfied  by  con- 
structing broken  end-lines.     "They  must  be  straight 
— -7*  lines,  not  broken  or  curved.  "^^     A 
•-<^      survey  for  patent  made  in  the  form 
— ^    indicated  in  figure  38  would  be  re- 


59 


Figure  38.         jected. 

A  lode  locator  may  not  in  the  same  location  law- 
fully include  any  surface  area  or  acquire  any  inci- 
dental mining  rights  therein  outside  of  the  course  of 
vertical  planes  drawn  downward  through  the  estab- 
lished end-lines  of  his  claim  extended  in  their  own 
direction.^" 

Where  the  location  as  originally  marked  upon 
the  ground  has  nonparallel  end-lines,  it  may  be  recti- 
fied at  any  time,  if  such  rectification  does  not  inter- 
fere with  intervening  rights.^^ 

57  For  full  discussion  of  the  subject  of  converging  end-lines  and  the 
extent  of  the  extralateral  right  which  may  be  enjoyed  therewith,  see, 
V08t,  §  582. 

58  Walrath  v.  Champion  M.  Co.,  171  U.  S.  293,  311,  18  Sup.  Ct.  Rep. 
909,  43  L.  ed.  170,  19  Morr.  Min.  Rep.  410,  said  to  be  one  of  the  iron- 
clad rules;  Belligerent  and  Other  Lodes.  35  L.  D.  22. 

59  Instructions  to  Surveyor-general,  10  Copp's  L.  O.  86. 

60  Pilot  Hill  and  Other  Lodes,  35  L.  D.  592.  See  diagram  oppositS 
p.  594,  35  L.  D. 

61  Doe  V.  Sanger,  83  Cal.  203,  23  Pac.  365,  368,  17  Morr.  Min.  Rep.  298; 


§  365      THE  SURFACE  COVERED  BY  THE  LOCATION.       864 

A  locator  of  a  mining  claim  may  abandon  a  portion 
of  his  original  location  without  forfeiting  any  rights 
he  may  have  to  the  remainder  of  the  claim.®^ 

There  is  no  necessity  for  the  two  end-lines  being  of 
the  same  length.  If  they  both  cross  the  lode  and  are 
parallel  to  each  other,  the  fact  that  one  may  be  six 
hundred  feet  long  and  the  other  shorter  is  entirely 
immaterial,  provided  that  both  have  substantial  ex- 
istence in  fact,  and  that  as  to  length  they  reasonably 
comport  with  the  width  of  the  claim  as  located."' 

In  previous  sections"  we  have  fully  explained  the 
state  of  the  law  regarding  the  privileges  granted  to 
junior  locators  of  placing  lines  over  senior  locations, 
as  well  as  over  patented  lands,  both  mining  and  agri-  ^ 
cultural.  It  is  unnecessary  to  repeat  what  was  there 
said. 

The  difference  between  the  former  rulings  of  the 
land  department  and  those  now  governing  that  tribunal 
in  the  administration  of  the  mining  laws  may  be  illus- 
trated by  the  use  of  a  diagram  (figure  39).  Formerly 
A,  the  junior  locator,  would  have  been  compelled  to 
draw  his  end-line  at  X  where  the  apex  of  the  vein  en- 
tered the  side-line  of  the  senior  claim  B,  making  a  recon- 
structed end-line,  b-a.    Under  the  present  rulings  the 

Doe  V.  Waterloo  M.  Co.,  54  Fed.  9^35;  Daggett  v.  Yreka  M.  &  M.  Co., 
149  Cal.  357,  86  Pac.  968,  969. 

62  Tyler  M.  Co.  v.  Sweeney,  54  Fed.  284,  289,  4  C.  C.  A.  329;  Last 
Chance  M.  Co.  v.  Tyler  M.  Co.,  61  Fed.  557,  560,  9  C.  C.  A.  613;  Tyler 
M.  Co.  V.  Last  Chance  M.  Co.,  71  Fed.  848,  850,  18  Morr.  Min.  Eep. 
303;  Carrie  S.  G.  M.  Co.,  29  L.  D.  287;  In  re  Connell,  29  L.  D.  574. 

as  Jack  Pot  Lode  Mining  Claim,  34  L.  D.  470;  Belligerent  and  Other 
Lodes,  35  L.  D.  22. 

64  §§  sea,  363a. 


865 


THE  SIDE-LINES. 


S366 


junior  may  place  liis  end-line 
entirely  within  the  senior 
claim,  as  indicated  in  the  dia- 
gram, or  he  may  extend  his 
side-lines  entirely  across  the 
senior  claim,  placing  the  end- 
line  on  unappropriated  ground; 
and  this  may  be  done  whether 
the  senior  claim  has  passed  to 
patent  or  not, 

§  366.  The  side-lines.— The 
primary  function  of  the  side- 
lines is  to  connect  the  op- 
posite extremities  of  the  end- 
lines,  and  to  complete  the  in- 
closure  of  a  surface  within 
which  is  found  the  apex  of  the 
Figure  39.  discovered  lode.     As  the  width 

of  a  location  is  fixed  with  reference  to  the  middle  of 
the  vein,  the  law  contemplates  that  this  must  be  ascer- 
tained by  actual  exploration  and  development,  and 
cannot  be  assumed  to  be  in  an  unexplored  position.^^ 
Where  the  vein  outcrops  at  the  surface,  there  can  be 
no  question  as  to  the  point  from  which  the  lateral  meas- 
urement must  begin.  When  the  discovery  shaft  de- 
velops the  vein  at  some  distance  below  the  surface,  and 
the  locator  does  not  determine  by  any  further  develop- 
ment that  the  nearest  actual  surface  point  is  elsewhere, 
and  the  fact  does  not  otherwise  appear,  the  land  de- 
partment has  ruled  that,  for  executive  purposes,  the 
middle  of  the  vein  as  disclosed  in  the  shaft  will  be  as- 


65  In  re  Albert  Johnson,  7  Copp's  L.  0.  35. 
Lindley  on  M. —  55 


§  366  THE   SURFACE   COVERED   BY   THE   LOCATION.  866 

sumed  to  be  the  point  from  which  lateral  measure- 
ments are  to  be  calculated.^® 

According  to  the  regulations  of  the  department, 
lateral  measurements  cannot  extend  more  than  three 
hundred  feet  on  either  side.  Four  hundred  feet  cannot 
be  taken  on  one  side  and  two  hundred  on  the  other;  but 
if,  by  reason  of  prior  claims,  the  full  width  allowed  can- 
not be  taken  on  one  side,  the  locator  will  not  be  re- 
stricted to  less  than  three  hundred  feet  on  the  other." 

It  must  be  presumed  for  executive  purposes  that  the 
lode  proceeds  in  a  straight  line  in  the  center  of  the  plat 
of  patent  survey,  unless  evidence  be  submitted  showing 
a  different  direction.  If  the  course  of  the  vein  (at  the 
surface)  diverges  from  a  straight  line,  the  applicant 
for  patent  should  indicate  the  direction  and  adjust  his 
survey  accordingly.®® 

The  ingenuity  of  the  law  officers  of  the  land  depart- 
ment has  been  severely  taxed  in  an  effort  to  determine 
the  position  of  the  ** middle  of  the  vein"  in  the  case  of 
bedded  or  blanket  deposits,  for  the  purpose  of  estab- 
lishing the  side-lines  of  a  claim  located  thereon.  The 
department  was  admonished  by  the  supreme  court  of 
the  United  States  that  this  class  of  deposits  fell  within 
the  legal  definition  of  a  lode,  and  was  subject  to  loca- 
tion under  the  lode  laws.®* 

The  admonition  of  Judge  Hallett  to  the  miner,  that 
he  *'must  find  where  this  top,  or  apex,  is,  and  make  his 
location  with  reference  to  that,"  possesses  but  little 

««  Taylor  v.  Parenteau,  23  Colo.  368,  48  Pac.  505,  507,  18  Morr.  Min. 
Rep.  534;  In  re  Hope  M.  Co.,  5  Copp's  L.  0.  116;  par.  5,  Circ.  Instruc- 
tions, July  26,  l&Ol  (see  Appendix), 

67  Par.  5,  Mining  Begulations  (see  Appendix). 

68  Bimetallic  M.  Co.,  15  L.  D.  309;  see  Harper  v.  Hill,  159  Cal.  250, 113 
Pac.  162,  164,  1  Water  &  Min.  Cas.  58o. 

69  Iron  S.  M.  Co.  v.  Mike  &  Starr  G.  &  S.  M.  Co.,  143  U.  S.  394,  400. 
72  Sup.  Ct.  Rep.  543,  36  L.  ed,  201,  17  Morr.  Min.  Rep.  436. 


867  THE  SIDE-LINES.  §  366 

persuasive  force,  when  considered  with  reference  to  a 
horizontal,  or  blanket  vein,  which  has  no  apex.  The 
land  department  pointed  a  way  out  of  the  dilemma  by 
establishing  the  following  rule: — 

The  only  reasonable  solution  of  the  problem  seems 
to  be  to  hold  that  the  apex  of  the  lode  is  coextensive 
with  the  distance  between  the  side-lines  of  the  loca- 
tion, and  that  everj^  part  or  point  of  such  apex  within 
those  limits  is  as  much  the  middle  of  the  vein  within 
the  intent  and  meaning  of  section  twenty-three  hun- 
dred and  twenty  of  the  Eevised  Statutes  as  any  other 
part." 

In  other  words,  the  entire  tipper  surface  of  the 
"blanket"  is  apex,  and  the  middle  of  the  apex  is  any- 
where one  chooses  to  establish  an  arbitrary  line. 
While  the  result  reached  by  the  secretary  is  a  rational 
one,  the  reasoning  is  not  altogether  faultless ;  but  con- 
sidering the  embarrassments  surrounding  cases  of  this 
character,  any  rational  or  equitable  result  should  be 
exempt  from  adverse  criticism.  After  a  patent  issues 
for  a  claim  of  this  character  an  apex  would  be  con- 
clusively presumed  to  exist  within  the  limits  of  the 
claim,^^  and  the  same  presumption  would  be  indulged 
as  to  the  regularity  of  the  fonn  of  the  surface."  The 
patentee  or  locator  on  this  class  of  deposits  would  hold 
everything  within  his  vertical  boundaries,  without 
serious  danger  from  outside  apex  proprietors  on  the 
same  vein.'* 

TO  Homestake  M.  Co.,  29  L.  D.  689,  691. 

Ti  Iron  S.  M.  Co.  v.  Campbell,  17  Colo.  267,  272,  29  Pac.  513. 

"  Post,  §  778. 

78  In  the  case  of  Jack  Pot  Lode  Mining  Claim,  34  L.  D.  470,  the 
locator  constructed  a  zigzag  lode  line  on  a  blanket  deposit,  so  that 
he  had  an  irregular  shaped  figure  eight  hundred  feet  wide  at  one 
end  and  two-tenths  of  an  inch  at  the  other.  This  form  was  given  to 
the  location  on  the  theory  that  by  constructing  the  zigzag  apex  line 
the  locator  could  secure  a  greater  width  than  six  hundred  feet.     The  de- 


§  366  THE  SURFACE   COVERED  BY   THE  LOCATION,  868 

Side-lines,  properly  drawn,  run  on  each  side  of  the 
course  of  the  vein,  distant  not  more  than  three  hun- 
dred feet  from  the  middle  of  such  vein;'*  but  there 
is  no  command  that  they  should  be  parallel/'  So  long 
as  they  keep  within  the  statutory  width  they  may  have 
angles  and  elbows,'^  as  in  figure  40,  or  converge  toward 
each  other,  as  in  figure  41,  without  jeopardizing  any 
rights,  so  far  as  the  located  lode  is  concerned,  if  the 
end-lines  are  properly  constructed  with  reference  to 
such  lode.  A  locator,  whose  surface  lines  are  con- 
structed as  in  figure  41,  of  course  obtains  less  area 
than  is  embraced  in  the  ideal  location,  but  otherwise  he 


Figure  40.  Figure  41. 

suffers  no  diminution  of  rights  from  those  acquired  by 
the  ideal.  The  parallelism  or  nonparallelism  of  the 
side-lines  may,  however,  become  an  important  factor 
if  the  locator  makes  a  mistake,  as  he  frequently  does, 
as  to  the  course  of  his  vein,  and  locates  crosswise  in- 
stead of  along  the  vein. 

While  side-lines  may  converge  as  indicated  on  figure 
41,  the  general  rule  is  not  to  be  ignored  that  the  end- 

partment  directed  a  reformation  of  the  lines  of  the  claim.  The  rule 
in  the  Jack  Pot  case  was  followed  in  Belligerent  and  Other  Lodes,  35 
L.  D.  22. 

74  King  V.  Amy  &  .Silversmith  M.  Co.,  152  U.  S.  222,  228,  14  Sup. 
Ct.  Eep.  510,  38  L.  ed.  419,  18  Morr.  Min.  Eep.  76;  Southern  California 
By.  V.  O'Donnell,  3  Cal.  App.  382,  85  Pac,  932,  934;  McElligott  v. 
Krogh,  151  Cal.  126,  90  Pac.  823,  825. 

75  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  84, 
18  Sup.  Ct.  Eep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Eep.  370;  Woods  v. 
Holden,  26  L.  D.  198,  206;  Stevens  v.  Williams,  1  McCrary,  480,  Fed. 
Cas.  No.  13,413,  1  Morr.  Min.  Eep.  566. 

76  McElligott  V.  Krogh,  151  Cal.  126,  90  Pac,  823,  820. 


8G9  SIDE  END-LUSfES.  §  367 

lines  must  have  substantial  existence  in  fact  and  shall 
reasonably  comport  as  to  length  with  the  width  of 
the  claim." 

The  validity  of  a  location  is  not  impaired  by  the 
later  determination  that  the  apex  of  the  vein  runs  out 
of  a  line  located  as  a  side-line/^  The  extent  of  the 
rights  conferred  by  the  location,  under  such  condi- 
tions, would  necessarily  be  abridged/® 

Where  a  location  is  of  excessive  width,  the  excess 
should  be  cast  off,  so  that  the  middle  of  the  vein  will 
be  in  the  center  of  the  location.®" 

The  width  of  a  mining  claim,  when  that  is  the  only 
question  involved,  is  the  perpendicular  distance  be- 
tween the  side-lines.  End-lines  are  not  always  at  right 
angles  to  side-lines,  and  in  such  cases  the  width  meas- 
ured along  the  end-line  may  be  in  excess  of  six  hun- 
dred feet,  but  this  is  not  the  guide  to  the  determination 
of  the  width." 

§  367.  Side-end  lines. — End-lines  are  not  always 
those  which  are  designated  as  such  bj^  the  locator.  If 
the  vein  does  not  cross  the  line  called  by  him  an  end- 
line,  it  is  not  in  law  an  end-line.  In  such  case  it  per- 
forms the  mere  function  of  a  side-line.     In  all  cases 

7T  Ja«k  Pet  Lode  Claim,  34  L.  D.  470;  Belligerent  and  Other  Lodes, 
35  L.  D.  22. 

78  Beik  V.  Nickerson,  29  L.  D.  662. 

79  Southern  California  Ey.  Co.  v.  O'Donnell,  3  Cal.  App.  382,  85 
Pae.  932,  934;  Harper  v.  Hill,  159  Cal.  250,  113  Pac.  162,  166,  1  Water 
&  Min.  Cas.  585. 

80  Lakin  v.  Dolly,  53  Fed.  333,  337;  Taylor  v.  Parenteau,  23  Colo. 
368,  48  Pae.  505,  507,  18  Morr.  Min.  Kep.  534;  Bonner  v.  Meikle,  82 
Fed.  697,  705,  19  Morr.  Min.  Rep.  83. 

81  Davis  V.  Shepherd,  31  Colo.  141,  72  Pac.  57,  58,  22  Morr.  Min. 
Eep.  575.  In  the  opinion  in  this  case  the  limit  of  width  is  said  to  be 
three  hundred  feet.  That  is  the  limit  fixed  by  the  Colorado  statute.  Stat- 
utes 1911,  p.  515;  ante,  §  361. 


§  367  THE  SURFACE   COVERED   BY   THE  LOCATION.  870 

where  a  vein  crosses  a  side-line,  the  side-line  performs 
the  function  of  an  end-line,  to  the  extent,  at  least,  that 
it  stops  the  pursuit  of  the  vein  on  its  strike.  It  is  there- 
fore to  this  extent  in  law  an  end-line,^^  whether  so  in- 
tended by  the  locator  or  not.^^  We  call  it  a  side-end 
line  for  descriptive  purposes.  Whether  the  side-end 
line  performs  the  function  of  an  end-line  for  the  pur- 
pose of  determining  the  extralateral  right,  will  depend 
upon  circumstances.  If  the  vein  crosses  two  side-lines, 
substantially  as  in  the  Flagstaff-Tarbet'*  and  Argen- 
tine-Terrible^® cases,  where  the  crossed  side-lines  are 
parallel,  there  is  no  reason  why  the  vein  may  not  be 
followed  on  its  downward  course  throughout  its  entire 
depth,  between  vertical  planes  drawn  downward 
through  the  side-end  lines,  produced  indefinitely  in 
their  own  direction,  and  the  courts  have  so  held.  If 
the  side-end  lines  are  not  parallel,  as  those  lines  are 

82  Flagstaff  M.  Co.  v.  Tarbet,  98  U.  S.  463,  467,  25  L.  ed.  253,  9  Morr. 
Min.  Eep.  607;  Argentine  M.  Co.  v.  Terrible  M.  Co.,  122  U.  S.  478, 
485,  7  Sup.  Ct.  Eep.  1356,  30  L.  ed.  1140,  17  Morr.  Min.  Eep.  109; 
King  V.  Amy  &  Silversmith  M.  Co.,  152  U.  S.  222,  228,  14  Sup.  Ct. 
Eep.  510,  38  L.  ed.  419,  18  Morr.  Min.  Eep.  76;  Del  Monte  M.  &  M. 
Co.  V.  Last  Chance  M.  Co.,  171  U.  S.  55,  65,  18  Sup.  Ct.  Eep.  895, 
43  L.  ed.  72,  19  Morr.  Min.  Eep.  370;  Eilers  v.  Boatman,  3  Utah,  159, 
2  Pac.  66,  71,  15  Morr.  Min.  Eep.  462;  Stevens  v.  Williams,  1  Morr. 
Min.  Eep.  557,  Fed.  Cas.  No.  13,414;  Tombstone  M.  &  M.  Co.  v.  Wayup 
M.  Co.,  1  Ariz.  426,  25  Pac.  794,  796;  Watervale  M.  Co.  v.  Leach,  4 
Ariz.  34,  33  Pac.  418,  421,  17  Morr.  Min.  Eep.  568;  Colorado  Cent.  E. 
K.  V.  Turck,  50  Fed.  888,  896,  2  C.  C.  A.  67;  S.  C,  on  rehearing,  54  Fed. 
262,  4  C.  C.  A.  313;  Tyler  M.  Co.  v.  Sweeney,  54  Fed.  284,  292,  4  C. 

C.  A.  329;  New  Dunderberg  M.  Co.  v.  Old,  79  Fed.  598,  606,  25  C.  C. 
A.  116;  Cosmopolitan  M.  Co.  v.  Foote,  101  Fed.  518,  521,  20  Morr.  Min. 
Eep.  497;  Davis  v.  Shepherd,  31  Colo.  141,  72  Pac.  57,  22  Morr.  Min. 
Eep.  575. 

83  Bunker  Hill  &  Sullivan  M.  &  C.  Co.  v.  Empire  State-Idaho  M.  & 

D.  Co.,  109  Fed.  538,  540,  48  C.  C.  A.  66o,  21  Morr.  Min.  Eep.  317. 

84  98  U.  S.  463,  25  L.  ed.  253,  9  Morr.  Min.  Eep.  607. 

86  122  U.  S.  478,  7  Sup.  Ct.  Eep.  1356,  30  L.  ed.  1140,  17  Morr.  Min. 
Kep.  109. 


871 


NECESSITY   FOE,  AND   OBJECT   OF,    MARKING. 


§    371 


indicated  in  figure  41,  and  the  dip  of  the  vein  is  toward 
their  convergence,  it  is  possible  that  these  lines  may  be 
extended  in  their  own  direction  until  they  meet,  and 
the  locator  may  pursue  the  vein  in  depth  to  the  vertical 
line  of  junction  between  the  two  planes.  There  is  some 
difference  in  judicial  opinion  as  to  this.^^  If  the  dip 
is  in  the  direction  of  the  divergence,  there  certainly  is 
no  extralateral  right.  The  consideration,  however,,  of 
this  character  of  cases,  together  with  those  where  a 
vein  crosses  one  end-line  and  one  side-line,  will  be  de- 
ferred until  we  reach  the  subject  of  extralateral  rights. 


ARTICLE  VII. 


The  Marking  of  the  Location  on 
THE  Surface. 


§  371.  Necessity  for,  and  object 
of,  marking. 

§  372.  Time  allowed  for  mark- 
ing. 

§  373.  What  is  sufficient  mark- 
ing under  the  federal 
law. 


§  374.  State  statutes  defining 
the  character  of  mark- 
ing. 

§  375.  Perpetuation  of  monu- 
ments. 


§  371.     Necessity  for,  and  object  of,  marking.— The 

Eevised  Statutes  of  the  United  States"  contain  the 
mandatory  provision,  that  the  **  location  must  be  dis- 
tinctly marked  on  the  ground  so  that  its  boundaries 
can  be  readily  traced."  There  is  no  escape  from  this 
requirement.  While  it  is  possible  that  state  statutes 
or  local  district  regulations  may  particularize  as  to  the 
character  of  the  marking,  they  cannot  dispense  with 
the  necessity  for  compliance  with  the  law  of  congress. 
While,  as  we  shall  hereafter  point  out,  time  is  allowed 
within  which  to  establish  the  boundaries,  until  this  is 


88  Post,  §  590. 

87   §  2324  J  Comp.  Stats.  1901,  p.  1426;  5  Fed.  Stats.  Ann.  19. 


§  371  MARKING  OF  LOCATION  ON  THE  SURFACE.  872 

done  the  location  is  not  complete.^^  The  requirement 
is  an  imperative  and  indispensable  condition  precedent 
to  a  valid  location,^^  and  is  not  to  be  "frittered  away 
by  construction.  "^°  After  the  discovery,  it  is  the 
main  act  of  original  location.®^  This  was  the  rule 
under  the  Spanish  and  Mexican  law,®^  The  object  of 
the  law  in  requiring  the  location  to  be  marked  on  the 
ground  is  to  fix  the  claim,  to  prevent  floating  or  swing- 
ing, so  that  those  who  in  good  faith  are  looking  for  un- 
occupied ground  in  the  vicinity  of  previous  locations 
may  be  enabled  to  ascertain  exactly  what  has  been 
appropriated,  in  order  to  make  their  locations  upon  the 
residue.^^  It  also  operates  to  determine  the  right  of 
the  claimant  as  between  himself  and  the  general  gov- 
ernment.®* 

88  Belk  V.  Meagher,  104  U.  S.  279,  284,  26  L.  ed.  735,  1  Morr.  Min. 
Rep.  510;  Strepey  v.  Stark,  7  Colo.  614,  5  Pae.  Ill,  114,  17  Morr.  Min. 
Rep.  28;  Garfield  M.  &  M.  Co.  v.  Hammer,  6  Mont.  53,  8  Pac.  153, 
155;  Gilpin  County  M.  Co.  v.  Drake,  8  Colo.  586,  589,  9  Pac.  787,  788; 
Sweet  V.  Webber,  7  Colo.  443,  4  Pac.  752,  754. 

89  Ledoux  V.  Forester,  94  Fed.  600,  602. 

90  Gleeson  v.  Martin  White  M.  Co.,  13  Nev.  442,  456. 

91  Donahue  v.  Meister,  88  Cal.  121,  131,  22  Am.  St.  Rep.  283,  25 
Pac.  1096,  1099;  McCleary  v.  Broaddus,  14  Cal.  App.  60,  111  Pac.  125, 
127;  Eaton  v.  Norris,  131  Cal.  563,  63  Pac.  856,  21  Morr,  Min.  Rep. 
205. 

92  United  States  v.  Castillero,  2  Black  (U.  S.),  17,  96,  17  L.  ed.  360; 
Gonu  V.  Russell,  3  Mont.  358. 

93  Gleeson  v.  Martin  White  M.  Co.,  13  Nev.  442,  462;  Patterson  v. 
Tarbell,  26  Or.  29,  37  Pac.  76,  78;  Gird  v.  California  Oil  Co.,  60  Fed. 
531,  536,  18  Morr.  Min.  Rep.  45;  Willeford  v.  Bell  (Cal.),  49  Pac.  6; 
Upton  V.  Larkin,  7  Mont.  449,  17  Pac.  728,  731,  15  Morr.  Min.  Rep. 
404;  Sanders  v.  Noble,  22  Mont.  110,  55  Pae.  1037,  1042,  19  Morr.  Min. 
Rep.  650;  Walsh  v.  Erwin,  115  Fed.  531,  536;  Book  v.  Justice  M.  Co., 
58  Fed.  106,  114,  17  Morr.  Min.  Rep.  617;  Kern  Oil  Co.  v.  Crawford, 
143  Cal.  298,  3  L.  R.  A.,  N.  S.,  993,  76  Pac.  1111,  1112;  Daggett  v. 
Yreka  M.  &  M.  Co.,  149  Cal.  357,  86  Pac.  968,  970;  Bergquist  v.  West 
Virginia  &  W.  Copper  Co.,  18  Wyo.  234,  106  Pac.  673,  680. 

94  Pollard  V.  Shively,  5  Colo.  309,  317.  See,  also,  Drummond  v. 
Long,  9  Colo.  538,  13  Pac.  543,  15  Morr.  Min.  Rep.  510. 


873  TIME  ALLOWED  FOR  MARKING.  §  372 

§  372.  Time  allowed  for  marking. — Under  the 
United  States  laws  a  claim  may  be  marked  at  any  time 
prior  to  the  acquisition  of  an  intervening  right,  re- 
gardless of  the  question  as  to  whether  the  time  within 
which  such  marking  was  made  was  reasonable  or  not." 
In  the  absence  of  state  legislation  or  district  regula- 
tion, it  has  been  held,  in  California,  that  while  a  party 
in  actual  possession,  proceeding  with  diligence  to  mark 
his  boundaries,  would  be  protected  as  against  a 
stranger  attempting  to  relocate,  yet,  strictly  speaking, 
no  time  is  allowed  to  the  locator  to  complete  his  loca- 
tion by  marking  it  on  the  surface.''^  This  view  is  also 
adopted  by  the  supreme  court  of  Oregon.*^ 

But,  as  heretofore  indicated,®*  the  circuit  court  of 
appeals  for  the  ninth  circuit,  upon  the  same  state  of 
facts,  presented  in  one  of  the  California  cases,^®  de- 
clined to  accept  the  doctrine  of  the  California  courts,'**" 
but  follows  the  rule  announced  by  the  supreme  courts 
of  Nevada'  and  Idaho,'  and  the  manifest  intent  of  the 
law  as  suggested  by  the  supreme  court  of  the  United 

95  Ante,  §  330;  Crown  Point  G.  M.  Co.  v.  Crismon,  39  Or.  364,  65 
Pac.  87,  21  Morr.  Min.  Rep.  406. 

66  Newbill  V.  Thurston,  65  Cal.  419,  4  Pac.  409,  410;  Gregory  v. 
Pershbaker,  73  Cal.  109,  14  Pac.  401,  15  Morr.  Min.  Rep.  602;  Pharis 
V.  Muldoon,  7,-  Cal.  284,  17  Pac.  70,  71,  15  Morr.  Min.  Rep.  348;  but  see 
McCleary  v.  Broaddus,  14  Cal.  App.  60,  111  Pac.  125,  126,  and  Stats. 
of  Cal.  1909,  p.  313;  Civil  Code,  §§  1426,  1426a. 

»7  Patterson  v.  Tarbell,  26  Or.  29,  37  Pac.  76. 

98  Ante,  §  339. 

99  Newbill  V.  Thurston,  65  Cal.  419,  4  Pac.  409,  410. 

100  Doe  V.  Waterloo  M.  Co.,  70  Fed.  455,  17  C.  C.  A.  190,  18  Morr. 
Min.  Rep.  265,  affirming  55  Fed.  11,  15. 

1  Golden  Fleece  M.  Co.  v.  Cable  Cons.  M.  Co.,  12  Nev.  312,  329;  Glee- 
son  V.  Martin  White  M.  Co.,  13  Nev.  442. 

2  Burke  v.  McDonald,  2  Idaho,  646,  679,  33  Pac.  49,  50,  17  Morr. 
Min.  Rep.  325. 


§  373  MARKING  OF  LOCATION  ON  THE  SURFACE,  874 

States'  and  by  the  courts  of  last  resort  in  Colorado,* 
South  Dakota,^  Washington,®  and  Montana/  It  is  un- 
necessary" to  here  repeat  what  we  have  said  on  this 
subject  in  a  preceding  section.^  For  the  reasons 
therein  suggested,  we  are  of  the  opinion  that  the  rule, 
as  announced  in  California  and  Oregon,  is  opposed  to 
both  the  spirit  of  the  law  and  the  weight  of  authority. 

§  373.  What  is  sufficient  marking  under  the  federal 
law. — As  noted  in  the  succeeding  section,  some  of  the 
states  have  enacted  laws  defining  the  character  of 
monuments,  or  marks,  to  be  placed  on  the  ground.  In 
the  absence  of  such  state  legislation  or  local  regulation, 
what  constitutes  a  suflScient  marking  is  a  question  to  be 
determined  by  the  jury,  according  to  the  circumstances 
in  each  particular  case.*  It  naturally  depends  upon 
the  conformation  of  the  ground.  What  might  be 
sufficient  in  the  case  of  a  comparatively  level  or  bare 
surface  might  not  answer  the  requirements  of  the  law 

3  Erhardt  v.  Boaro,  113  U.  S.  527,  535,  5  Sup.  Ct.  Rep.  560,  28  L. 
ed.  1113,  15  Morr.  Min.  Rep.  472, 

4  Murley  v.  Ennis,  2  Colo.  30O;  Patterson  v.  Hitchcock,  3  Colo.  533. 

5  Marshall  v.  Harney  Peak  Tin  M.  Co.,  1  S.  D.  350,  47  N.  W,  290, 
293. 

6  Union  M.  &  M.  Co.  v.  Leitch,  24  Wash.  585,  85  Am,  St,  Rep.  961, 
64  Pac.  829,  830. 

^  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037,  1045. 

8  Ante,  §  339. 

»  Taylor  v.  Middleton,  67  Cal.  656,  8  Pac,  594,  595,  15  Morr,  Min. 
Rep,  284;  Anderson  v.  Black,  70  Cal,  226,  11  Pac.  700,  701:  Du  Prat 
V.  James,  65  Cal.  555,  4  Pac.  562,  564,  15  Morr.  Min.  Rep,  341; 
Farmington  G.  M,  Co.  v,  Rhymney  G,  &  C,  Co,,  20  Utah,  363,  77  Am. 
St,  Rep.  913,  58  Pac.  832;  Eaton  v.  Norris,  131  Cal,  561,  63  Pac.  856, 
857,  21  Morr.  Min.  Rep.  205;  Russell  v.  Chumasero,  4  Mont,  309,  1 
Pac,  713,  714,  15  Morr.  Min.  Rep.  508  (decided  before  act  of  1895); 
Purdum  v,  Laddin,  23  Mont.  387,  59  Pac,  153,  154;  Walton  v.  Wild 
Goose  M.  &  T.  Co.,  123  Fed.  209,  60  C.  C.  A.  155,  22  Morr.  Min.  Rep. 
688;  Charlton  v.  Kelly,  156  Fed.  433,  435,  84  C.  C.  A,  295,  13  Ann,  Gas. 
518. 


875  SUFFICIENCY  OF  MARKING.  §  373 

in  a  mountainous  region  where  tlie  hills  are  precipitous 
or  the  surface  covered  with  timber  or  undergrowth.^" 

This  requirement  is  not  fulfilled  by  simply  setting 
a  post  at  or  near  the  place  of  discovery,  and  setting 
stakes  at  each  of  the  comers  of  the  claim  and  at  the 
center  of  the  end-lines,  unless  the  topography  of  the 
ground  is  such  that  a  person  accustomed  to  tracing 
the  lines  of  mining  claims  can,  after  reading  the  de- 
scription of  the  claim  in  the  posted  notice  of  location, 
by  a  reasonable  and  bona  fide  effort  to  do  so,  find  all 
of  the  stakes,  and  thereby  trace  all  of  the  lines. 
Where  the  country  is  broken,  and  the  view  from  one 
coraer  to  another  is  obstructed  by  intervening 
gulches  and  timber  and  brush,  it  is  necessary  to 
blaze  the  trees  along  the  lines,  or  cut  away  the 
brush,  or  set  more  stakes,  at  such  distances  that 
they  may  be  seen  from  one  to  another,  or  dig  up  the 
ground  in  a  way  to  indicate  the  lines,  so  that  the 
boundaries  may  be  readily  traced." 

In  this  view  of  the  law,  adjudicated  cases  are  not 
often  of  controlling  weight.  They  depend  for  their 
value  as  precedents  upon  the  reasoning  of  the  courts 
and  the  similarity  as  to  facts  existing  in  the  case  to 
which  they  are  sought  to  be  applied. 

While  the  commissioner  of  the  general  land  office 
has  advised  the  erection  of  posts  at  the  comers,  and 
the  erection  of  a  signboard  at  the  location  point,  the 
law  may  be  satisfied  by  something  less." 

We  have  collated  the  following  examples,  wherein 
the  marking  in  the  manner  designated  was  held  to 
satisfy   the   law: — 

10  Book  V.  Justice  M.  Co.,  58  Fed.  106,  113;  Madeira  v.  Sonoma 
Magnesite  Co.  (Cal.  App.),  130  Pac.  175,  179. 

11  Ledoux  V.  Forester,  94  Fed.  60O,  602;  Charlton  v,  Kelly,  156  Fed, 
433,  435,  84  C.  C.  A.  295,  13  Ann.  Cas.  518. 

12  Gleeson  v.  Martin  White  M.  Co.,  13  Nev.  442,  462. 


§  373  MARKING  OF  LOCATION  ON  THE  SURFACE.  876 

In  a  district  where  the  extent  of  a  claim  on  each  side 
of  the  center  line  is  established  by  local  rule,  it  has 
been  said  that  the  object  of  the  law  is  attained  by 
marking  this  center  line;  that  a  man  of  common  intelli- 
gence, acquainted  with  the  customs  of  the  country, 
seeing  the  discovery  monument,  the  preliminary  posted 
notice,  and  the  stakes  marking  this  center  line,  would 
be  infoiTned  by  the  rules  of  the  district  and  the  laws 
of  the  land  that  the  boundaries  of  the  claim  were 
formed  by  lines  parallel  to  the  center  line,  at  the  dis- 
tance prescribed  by  local  rules,  and  by  end-lines  at 
right  angles  thereto.  With  this  knowledge,  he  could 
easily  trace  the  boundaries  and  ascertain  exactly  where 
he  could  locate  with  safety.^^ 

Judge  Sawyer  held  that  the  sinking  of  a  discovery 
shaft,  posting  a  notice  thereon,  and  placing  a  monu- 
ment and  post  at  one  extremity  of  the  linear  measure- 
ment, was  a  compliance  with  the  law.^* 

We  think  these  cases  stretch  the  law  to  the  utmost 
limit  of  liberality.  It  is  almost  a  return  to  the  primi- 
tive rules,  prevalent  when  the  lode  was  the  principal 
thing  located  and  the  surface  a  mere  incident,  when  the 
locator  could  hold  but  one  vein,  and  his  rights  as  to 
that  vein  were  not  defined  by  surface  boundaries." 

Under  the  existing  law,  a  grant  of  the  surface  is 
sought,  and  the  rights  on  the  discovered  lodp,  as  well 
as  all  others  whose  apices  may  be  found  therein,  are 
defined  exclusively  by  the  form  of  the  location  and  the 

13  Gleeson  v.  Martin  White  M.  Co.,  13  Nev.  442,  463.  See,  also,  Mt. 
Diablo  M.  &  M.  Co.  v.  Callison,  5  Saw.  439,  449,  Fed.  Cas.  No.  9886, 
9  Morr.  Min.  Rep.  616;  Oregon  King  M.  Co.  v.  Brown,  119  Fed.  48,  54, 
55  C.  C.  A.  626,  22  Morr.  Min.  Rep.  414;  Holdt  v.  Hazard,  10  Cal.  App. 
440,  10'2  Pac.  540,  541. 

14  North  Noonday  M.  Co.  v.  Orient  M.  Co.,  6  Saw.  299,  311,  1  Fed. 
522,  533,  9  Morr.  Min.  Rep.  529. 

16  Ante,  §  58. 


877  SUFFICIENCY   OF  MARKING.  §  373 

direction  of  the  boundary  lines.  What  the  existing 
law  evidently  contemplates  is  physical  evidence  on  the 
ground  of  marks  which  will  enable  one  to  trace  the 
lines  on  the  surface.^^ 

Posted  or  recorded  notices  may  be  an  aid  in  deter- 
mining the  situs  of  monuments,^^  but  they  cannot  be 
substituted  for  all  markings.  They  therefore  consti- 
tute a  part  of  the  marking,  as  does  every  other  object 
placed  on  the  ground  for  that  purpose,  if  in  fact  it 
does  aid  such  result.^' 

In  many  cases,  stakes  driven  into  the  ground  are  the 
most  certain  means  of  identitication." 

Fencing  is  not  necessary;^"  in  fact,  where  in  Cali- 
fornia the  early  occupants  inclosed  their  ground  with 
substantial  inclosures,  it  was  an  open  invitation  for 
prospectors  to  enter,  as  it  indicated  a  holding  for  agri- 
cultural purposes. 

Stakes  firmly  planted  in  the  ground,  marked  as  cor- 
ner stakes,  with  stone  mounds  placed  around  them, 
which  stakes  and  mounds  were  found  by  the  court  to  be 
"prominent  and  permanent  monuments,"  were  held 
to  justify  the  legal  conclusion  that  the  location  was  dis- 

16  Willeford  v.  Bell  (Cal.),  49  Pac.  6,  7;  Daggett  v.  Yreka  M.  &  M. 
Co.,  149  Cal.  357,  86  Pac.  968. 

17  McKinley  Creek  M.  Co.  v.  Alaska  United  M.  Co.,  183  U.  S.  563, 
570,  22  Sup.  Ct.  Rep.  84,  46  L.  ed.  331,  21  Morr.  Min.  Rep.  730;  Wal- 
ton V.  Wild  Goose  M.  &  T.  Co.,  123  Fed.  209,  214,  60  C.  C.  A.  155,  22 
Morr.  Min.  Rep.  688. 

18  Eaton  V.  Norris,  131  Cal.  561,  63  Pac.  856,  21  Morr.  Min.  Rep. 
205;  Meydenbauer  v.  Stevens,  78  Fed.  787,  792,  18  Morr.  Min.  Rep. 
578;  Temescal  Oil  &  D.  Co.  v.  Salcido,  137  Cal.  211,  69  Pac.  1010,  22 
Morr.  Min.  Rep.  360;  Walsh  v.  Erwin,  115  Fed.  531,  536;  McCleary 
V.  Broaddus,  14  Cal.  App.  60,  111  Pac.  125,  126. 

19  Hammer  v.  Garfield  M.  &  M.  Co.,  130  U.  S.  291,  299,  9  Sup.  Ct. 
Rep.  548,  32  L.  ed.  964,  16  Morr.  Min.  Rep.  125;  Eaton  v.  Norris,  131 
Cal.  561,  63  Pac.  856,  21  Morr.  Min.  Rep.  205. 

20  Rogers  v.  Cooney,  7  Nev.  215,  219. 


§  373  MARKING  OF  LOCATION  ON  THE  SURFACE.  878 

tinctly  marked  on  the  ground  so  that  the  boundaries 
could  be  readily  traced. ^^ 

Stakes  and  stone  monuments  at  each  comer  of  the 
claim,  and  at  the  center  of  each  of  the  end-lines,  are, 
according  to  the  supreme  court  of  Nevada,  as  much  as 
has  ever  been  required  under  the  most  stringent  con- 
struction of  the  law;"  and  yet  there  are  states  which 
require  eight  posts  and  monuments,  the  additional  two 
being  placed  at  the  center  of  the  side-lines.^' 

A  location  marked  by  a  discovery  monument,  on 
which  was  placed  the  notice  of  location,  and  by  a  stake 
at  each  of  three  of  the  comers  of  the  claim,  and  a 
monument  at  the  center  of  each  end-line,  leaving  one 
comer  unmarked,  was  held  to  be  sufficient  to  comply 
with  the  law.^* 

The  omission  to  mark  one  end  of  a  claim  where  the 
ground  was  so  inaccessible  that  the  surveyor,  when 
surveying  for  patent,  was  compelled  to  determine  the 
position  of  the  end-line  by  triangulation,  the  remainder 
of  the  claim  being  marked  by  stakes  and  mounds  at  the 
accessible  corners,  the  center  of  one  end-line,  a  dis- 

21  Du  Prat  V.  James,  65  Cal.  555,  4  Pae.  562,  563,  15  Morr.  Min.  Eep. 
341;  Gird  v.  California  Oil  Co.,  60  Fed.  531,  537,  18  Morr.  Min.  Rep. 
45;  Book  v.  Justice  M.  Co.,  58  Fed.  106,  113;  Credo  M.  &  S.  Co.  v. 
Highland  M.  &  M.  Co.,  95  Fed.  911,  914. 

22  Southern  Cross  G.  &  S.  M.  Co.  v.  Europa  M.  Co.,  15  Nev.  383. 
See,  also,  Souter  v.  Maguire,  78  Cal.  543,  21  Pac.  183,  184;  Book  v. 
Justice  M.  Co.,  58  Fed.  106,  113;  Howeth  v.  Sullenger,  113  Cal.  547, 
45  Pac.  841,  842;  Meydenbauer  v.  Stevens,  78  Fed.  787,  7»2,  18  Morr. 
Min.  Rep.  578;  Smith  v.  Newell,  86  Fed.  56,  57;  Credo  M.  &  S.  Co. 
V.  Highland  M.  &  M.  Co.,  95  Fed.  911,  914;  Sherlock  v.  Leighton,  9 
Wyo.  297,  63  Pac.  580,  584,  (on  rehearing)  934;  Holdt  v.  Hazard,  10  Cal. 
App.  440,  102  Pac.  540,  541.  The  present  statute  of  Nevada  requires  six 
stakes — one  at  each  corner  and  at  the  side-line  centers,  post,  §  374. 

23  North  Dakota,  South  Dakota,  post,  §  374. 

24  Warnock  v.  De  Witt,  11  Utah,  324,  40  Pac.  205;  Walsh  v.  Erwin, 
115  Fed.  531,  536. 


879  SUFFICIENCY  OF  MARKING.  §  373 

covery  monument  and  blazed  trees  on  the  center  line, 
was  held  not  to  be  an  evasion  of  the  law.  Under  the 
circumstances,  the  marking  was  sufficient." 

Posting  notices  on  trees,  one  at  each  end  of  the 
claim,^®  or  posting  a  notice  in  the  center  of  the  claim 
without  any  attempt  at  marking,"  have  been  held  to  be 
wholly  insufficient.  These  notices  would  sen^e  the 
purpose  for  which  they  were  originally  intended,  as 
notices  of  intention  to  locate,  but  would  only  preserve 
the  right  for  a  reasonable  time  to  enable  the  locator 
to  mark  his  boundaries."* 

The  supreme  court  of  the  United  States,  in  the  case 
of  McKinley  Creek  Mining  Co.  v.  Alaska  United  Min- 
ing Co.,^*  has  sustained  the  validity  of  a  placer  loca- 
tion where  no  attempt  was  made  to  actually  mark  the 
boundaries.  All  that  was  done  was  to  post  notices  on 
a  snag,  or  stump,  in  a  creek,  claiming  a  certain  number 
of  feet  running  with  the  creek  and  three  hundred  feet 
on  each  side  of  the  center  of  the  creek,  and  referring  to 
the  claim  as  the  east  extension  of  a  certain  named 
claim  and  the  west  extension  of  another.  Unless  some 
facts  or  circumstances  were  represented  to  the  court 
which  cannot  be  gleaned  from  the  official  report  of 
the  case,  such  a  location  would  seem  to  fall  short  of 
the  requirement   that  the   claim   shall  be   "distinctly 

26  Eilers  v.  Boatman,  3  Utah,  159,  2  Pac.  66,  69,  15  Morr.  Min.  Rep. 
159;  affirmed.  111  U.  S.  356,  4  Sup.  Ct.  Rep.  432,  28  L.  ed.  454,  15  Morr. 
Min.  R«p.  471. 

26  Holland  v.  Mt.  Auburn  G.  Q.  M.  Co.,  53  Cal.  149,  151. 

27  Gelcich  v.  Moriarity,  53  Cal.  217;  Morenhaut  v.  Wilson,  52  Cal. 
263,  269;  Doe  v.  Waterloo  M.  Co.,  70  Fed.  455,  458,  17  C.  C.  A.  190, 
18  Morr.  Min.  Rep.  265. 

27«  Text  cited  in  Madeira  v.  Sonoma  Magnesite  Co.  (Cal.  App.),  130 
Pac.  175,  180. 

28  183  U.  S.  563,  569,  22  Sup.  Ct.  Rep.  84,  46  L.  ed.  331,  21  Morr. 
Min.  Rep.   730. 


§  373  MARKING  OF  LOCATION  ON  THE  SURFACE.  880 

marked  on  the  ground,  so  that  its  boundaries  may  be 
readily  traced.  "^^ 

The  circuit  court  of  appeals,  ninth  circuit,  follows  the 
liberal  rule  in  this  case  and  says  that  the  statute  does 
not  say  that  the  boundaries  shall  be  indicated  by 
physical  marks  nor  in  any  particular  designated  man- 
ner.^° 

As  intimated  in  a  previous  section,  the  marks, 
stakes,  or  monuments  should  be  within  the  statutory- 
limit  as  to  area;^'  yet  this  rule  is  to  be  understood  in 
the  light  of  the  doctrine  that  excessive  locations  within 
reasonable  limitations  are  not  wholly  void,  but  are  in- 
valid only  as  to  the  excess.^^ 

In  so  far  as  the  ground  taken  is  vacant,  each  loca- 
tion, if  properly  made  in  other  respects,  will  be  valid." 

The  right  to  place  marks  upon  claims  previously  ap- 
propriated has  been  heretofore  discussed.^* 

A  failure  to  comply  with  the  law  as  to  the  marking 
within  a  reasonable  time  after  discovery,  where  there 
is  no  local  rule  or  state  statute  fixing  the  time,  or 

29  Rev.  stats.,  §  2324;  Comp.  Stats.  1901,  p.  1426;  5  Fed.  Stats.  Ann. 
19;  Rev.  Stats.,  §2329;  Comp.  Stats.  1901,  p.  1432;  5  Fed.  Stats.  Ann. 
42;  post,  §  454. 

30  Oregon  King  M.  Co.  v.  Brown,  119  Fed.  48,  56,  55  C.  G.  A.  626, 
22  Morr.  Min.  Rep.  414,  quoting  from  Book  v.  Justice  M.  Co.,  58  Fed. 
106,  113,  17  Morr.  Min.  Rep.  617.  See,  also,  Walton  v.  Wild  Goose 
M.  &  T.  Go.,  123  Fed.  209,  218,  60  G.  C.  A.  155,  22  Morr.  Min.  Rep. 
688;  Charlton  v.  Kelly,  156  Fed.  433,  435,  84  C.  C.  A.  295,  13  Ann. 
Gas.  518. 

31  Leggatt  V.  Stewart,  5  Mont.  107,  109,  2  Pac.  320,  321,  15  Morr. 
Min.  Rep.  358;  Hauswirth  v.  Butcher,  4  Mont.  299,  1  Pac.  714. 

32  Ante,  §  362. 

33  Doe  V.  Tyler,  73  Gal.  21,  14  Pac.  375,  376;  West  Granite  Mt.  M. 
Go.  V.  Granite  Mt.  M.  Co.,  7  Mont.  356,  17  Pac.  547,  548;  Perigo  v. 
Erwin,  85  Fed.  904,  905,  19  Morr.  Min.  Rep.  269;  Grown  Point  M.  Go. 
V.  Buck,  97  Fed.  462,  465,  38  G.  C.  A.  278;  McElligott  v.  Krogh,  151 
Gal.  126,  90  Pac.  823,  825. 

34  Ante,  §§  363,  363a. 


881  SUFFICIENCY  OF  MARKING.  §  373 

within  the  time  tixed  by  statute  or  local  rule,  renders 
the  ground  subject  to  relocation ;^^  but  if  the  ground 
is  marked  before  conflicting  rights  accrue,  the  claim 
will  be  valid.^®  In  case  of  a  relocation,  the  right  of 
the  relocator  is  lost  if  he  fails  to  mark  his  boundaries 
prior  to  the  resumption  of  work  by  the  f onner  owner,^^ 
always  assuming  that  the  failure  to  perfect  the  loca- 
tion is  not  caused  by  the  fraud  or  tortious  acts  of  the 
relocator.^^  Failure  to  mark  the  boundaries  within 
the  time  allowed  by  law  or  prescribed  by  state  or  local 
regulation  cannot  be  taken  advantage  of  by  a  subse- 
quent locator,  if  the  prior  locator  perfects  his  location 
in  advance  of  anj^  intervening  rights/®  A  location 
when  perfected  relates  back  to  the  discovery." 
Boundaries  once  established  cannot  be  changed  to  the 
detriment  of  intervening  locators."  In  considering 
the  question  as  to  the  suflQciency  of  marking,  the  court 
is  not  confined  to  the  monuments  placed  at  the  cor- 

35  White  V.  Lee,  78  Cal.  593,  12  Am.  St.  Rep.  115,  21  Pac.  363,  17 
MoiT.  Min.  Rep.  209;  Funk  v.  Sterrett,  59  Cal.  613. 

36  Ante,  §§  330,  372;  Crown  Point  G.  M.  Co.  v.  Crismon,  39  Or.  364, 
65  Pac.  87,  88,  2.1  Morr.  Min.  Rep.  4t)6. 

3T  Genu  V.  Russell,  3  Mont.  358,  363;  Pharis  v.  Muldoon,  75  Cal.  284, 
17  Pac.  70,  71,  15  Morr.  Min.  Rep.  348;  Holland  v.  Mt.  Auburn  G.  Q.  M. 
Co.,  53  Cal.  149.     But  see  post,  §  408. 

38  Erhardt  v.  Boaro,  113  U.  S.  527,  534,  5  Sup.  Ct.  Rep.  560,  28  L. 
ed.  1113,  15  Morr.  Min.  Rep.  472;  Miller  v.  Taylor,  6  Colo.  41. 

39  North  Noonday  M.  Co.  v.  Orient  M.  Co.,  6  Saw.  299,  314,  1  Fed. 
522,  531,  9  Morr.  Min.  Rep.  529;  Jupiter  M.  Co.  v.  Bodie  Cons.  M.  Co., 
7  Saw.  96,  115,  11  Fed.  666,  676,  4  Morr.  Min.  Rep.  411.  See  ante, 
§  330. 

40  Doe  V.  Waterloo  M.  Co.,  70  Fed.  455,  459,  17  C.  C.  A.  190,  IS  Morr. 
Min.  Rep.  265;  Gregory  v.  Pershbaker,  73  Cal.  109,  14  Pac.  401,  404, 
15  Morr.  Min.  Rep.   602. 

41  O'Reilly  v.  Campbell,  116  U.  S.  418,  422,  6  Sup.  Ct.  Rep.  421,  29 
L.  ed.  669;  Golden  Fleece  M.  Co.  v.  Cable  Cons.  M.  Co.,  12  Nev.  312; 
Croesus  M.  &  S.  Co.  v.  Colorado  L.  &  M.  Co.,  19  Fed.  78,  81;  Bigelow 
V.  Conradt,  3  Alaska,  134,  140. 

Lindley  on  M. — 56 


§  374  MARKING  OF  LOCATION  ON  THE  SURFACE.  882 

ners  of  the  claim  at  the  inception  of  the  location  for 
the  purpose  of  marking  it,  but  may  consider  also  all 
other  objects  placed  on  the  ground,  either  then  or  sub- 
sequently, prior  to  the  subsequent  location,  either  for 
the  purpose  of  serving  as  monuments  or  otherwise.*^ 

It  is  not  necessary  that  the  marking  of  the  location 
on  the  ground  should  be  done  by  the  locator  in  person; 
such  marking  may  be  done  by  the  agents  or  employees 
of  the  locator  as  well  as  by  the  locator  himself.*^ 

§  374.  State  statutes  defining  character  of  marking. 
The  following  statutory  requirements  are  found  in  the 
precious  metal-bearing  states  and  territories: — 

California. — Before  filing  the  notice  of  location  for 
record  (within  thirty  days  after  discovery),  the 
locator  must  define  the  boundaries  of  his  claim  so  that 
they  may  be  readily  traced.** 

Colorado. — Before  filing  the  certificate  of  location 
for  record  (within  three  months  after  discovery)," 
the  surface  boundaries  must  be  marked  by  six  posts, 
hewed  or  marked  on  the  side,  or  sides,  in  toward  the 
claim,  and  sunk  into  the  ground,  one  at  each  corner, 
and  one  at  the  center  of  each  side-line.  If  bedrock 
prevents  the  sinking  of  posts,  the  boundary  may  be 
placed  on  a  pile  of  stones.  Where  it  is  impracticable 
(because  of  danger  in  placing  or  other  reason)  to  put 
the  post  at  the  proper  place,  it  may  be  placed  at  the 
nearest  practicable  point,  suitably  marked  to  desig- 
nate the  proper  place.*®     The  cutting  of  a  letter  in  a 

42  Eaton  V.  Norris,  131  Cal.  561,  63  Pac.  856,  857,  21  Morr.  Min. 
Kep.  205. 

43  Walton  V.  Wild  Goose  M.  &  T.  Co.,  123  Fed.  209,  217,  60  C.  C.  A. 
155,  22  Morr.  Min.  Eep.   688. 

44  Stats.  1909,  p.  313;  Civ.  Code,  §§  1426,  1426a. 

45  Mills'  Annot.  Stats.,  §3150;  Rev.  Stats.  1908,  §4194. 

46  Mills'  Annot.  Stats.,  §3153;  Eev.  Stats.  1908,  §4198. 


883  STATE  STATUTES.  §  37-i 

solid  rock  will  not  suffice  in  lieu  of  tlie  placing  of  a 
post/^  These  provisions  cannot  be  invoked  when  the 
setting  of  the  stake  at  the  true  comer  is  merely  diffi- 
cult or  inconvenient." 

Idaho. — Within  ten  days  from  the  date  of  discover^-, 
the  discoverer  must  mark  his  boundaries  by  establish- 
ing at  each  comer  thereof,  and  at  any  angle  in  the 
side-lines,  a  monument  of  any  material  or  form  which 
will  readily  give  notice,  which  shall  be  marked  with 
the  name  of  the  claim  and  the  comer,  or  angle,  it  repre- 
sents. If  the  monument  cannot  be  safely  planted  at 
the  true  angle,  or  comer,  it  may  be  placed  as  near 
thereto  as  practicable,  and  so  marked  as  to  indicate 
the  place  of  such  comer,  or  angle.  If  of  posts  or  trees, 
the  monuments  must  be  hewn,  and  marked  upon  the 
side  facing  discovery,  and  must  be  four  inches  square, 
or  in  diameter.  All  monuments  must  be  four  feet 
high." 

Arizona. — Before  filing  location  certificate  (ninety 
days  after  location ),^°  the  surface  boundaries  must  be 
marked  by  six  substantial  posts,  projecting  at  least 
four  feet  above  the  surface  of  the  ground,  or  by  sub- 
stantial stone  monuments,  at  least  three  feet  high, — 
to  wit,  one  at  each  corner  of  said  claim,  and  one  at  the 
center  of  each  end-line  thereof." 

47  Taylor  v.  Parenteau,  23  Colo.  368,  48  Pac.  505,  18  Morr.  Min.  Rep. 
534.  See,  also,  Croesus  M.  &  M.  Co.  v.  Colorado  L.  &  M.  Co.,  19  Fed. 
78,  79. 

*8  Beals  V.  Cone,  27  Colo.  473,  83  Am.  St.  Rep.  92,  62  Pac.  948,  953, 
20  Morr.  Min.  Rep.  591. 

<»  Rev.  Stats.,  §  3101,  as  amended— Laws  1895,  p.  27,  §  2;  Laws  1899, 
p.  633;  Civ.  Code  1901,  §2557;  Rev.  Code  1907,  §3207.  Se-J  Morrison 
V.  Regan,  8  Idaho,  291,  67  Pac.  955,  958,  22  Morr.  Min.  Rep.  69. 

60  Rev.  Stats.  1887,  §2349;  Id.  1901,  §3234;  Amd.  1909,  p.  157. 

61  Rev.  Stats.  1901,  §  3236.  This  statute  is  discussed  in  Wiltsee  v. 
Bang  of  Arizona  M.  &  M.  Co.,  7  Ariz.  95,  60  Pac.  896,  897. 


§  374  MARKING  OF  LOCATION  ON  THE  SURFACE.  884 

Montana. — Within  thirty  days  after  posting  the 
notice  the  locator  shall  mark  the  location  on  the 
ground  so  that  its  boundaries  can  be  readily  traced. 
It  shall  be  prima  facie  evidence  that  the  location  is 
properly  marked  if  the  boundaries  are  defined  by  a 
monument  at  each  corner  or  angle  of  the  claim  consist- 
ing of  any  of  the  following  kinds:  (1)  A  tree  at  least 
eight  inches  in  diameter  and  blazed  on  four  sides. 
(2)  A  post  at  least  four  inches  square  by  four  feet  six 
inches  in  length  set  one  foot  in  the  ground  unless  solid 
rock  should  occur  at  a  less  depth,  in  which  case  the  post 
should  be  set  upon  such  rock  and  surrounded  in  all 
cases  by  a  mound  of  earth  or  stone  at  least  four  feet 
in  diameter  by  two  feet  in  height.  A  square  stump 
of  the  requisite  size  surrounded  by  such  mound  shall 
be  deemed  the  equivalent  of  a  post  and  mound.  (3) 
A  stone  at  least  six  inches  square  by  eighteen  inches 
in  length,  set  two-thirds  of  its  length  in  the  ground, 
with  a  mound  of  earth  or  stone  alongside  at  least  four 
feet  in  diameter  by  two  feet  in  height;  or  (4)  a 
boulder  at  least  three  feet  above  the  natural  surface 
of  the  ground  on  the  upper  side. 

Where  other  monuments  or  monuments  of  lesser 
dimensions  than  those  above  described  are  used,  it 
shall  be  a  question  for  the  jury,  or  for  the  court  if  the 
case  is  tried  without  a  juiy,  as  to  whether  the  location 
has  been  marked  so  that  its  boundaries  can  be  readily 
traced.  Whatever  monument  is  used,  it  must  be 
marked  with  the  name  of  the  claim  and  the  description 
of  the  corner  either  by  number  or  cardinal  point.^^ 

52  Eev.  Pol.  Code  1895,  §§  3610,  3611;  amended,  Laws  1901,  p.  140; 
amended.  Laws  1907,  p.  18;  Rev.  Code  1907,  §  2283.  The  provisions 
of  this  section  as  it  stood  prior  to  its  amendment  in  1907  were  held 
to  be  mandatory.  Purdum  v.  Laddin,  23  Mont.  387,  59  Pac.  153, 
154;  Hahn  v.  James,  29  Mont.  1,  73  Pac.  965,  966.  Obviously  the 
amended  law  gives  the  locator  the  option  of  following  the  statute  and 


885  STATE  STATUTES.  §  374 

Nevada. — Within  twenty  days  from  the  date  of  post- 
ing the  notice  of  location  the  locator  shall  define  the 
boundaries  of  the  claim  by  placing  at  each  corner  and 
the  center  of  each  side-line  one  of  the  following  de- 
scribed monuments:  (1)  Removing  the  top  of  a  tree 
(having  a  diameter  of  not  less  than  four  inches)  not 
less  than  three  feet  above  the  ground,  and  blazing  and 
marking  the  same.  (2)  Rock  in  place  capping  such 
rock  with  smaller  stones,  such  rock  and  stones  to  have 
a  height  of  not  less  than  three  feet.  (3)  Posts  or  stone 
one  at  each  corner  of  the  claim  and  one  at  the  center 
of  each  side-line.  Posts  must  be  at  least  four  inches 
in  diameter  by  four  and  one-half  feet  in  length,  set 
one  foot  in  the  ground.  Where  it  is  practically  im- 
possible, on  account  of  bedrock  or  precipitous  ground, 
to  sink  such  posts,  they  may  be  placed  in  a  mound  of 
earth  or  stones  or  when  the  proper  placing  of  such 
posts  or  other  monuments  is  impracticable  or  danger- 
ous to  life  or  limb,  it  shall  be  lawful  to  place  such  posts 
or  monuments  at  the  nearest  point  properly  marked  to 
designate  its  right  place.  When  a  stone  is  used  (not 
rock  in  place),  it  must  be  not  less  than  six  inches  in 
diameter  and  eighteen  inches  in  length  set  two-thirds 
of  its  length  in  the  top  of  a  mound  of  earth  or  stone, 
four  feet  in  diameter  and  two  and  one-half  feet  in 
height.  All  trees,  posts  or  rocks  used  as  monuments, 
when  not  four  feet  in  diameter  at  the  base,  shall  be  sur- 
rounded by  a  mound  of  earth  or  stone  four  feet  in 
diameter  by  two  feet  in  height.  All  trees,  posts,  stones 
or  rock  monuments  must  be  so  marked  as  to  designate 
the  comers  of  the  claim  located.^^ 

receiving  the  benefit  of  the  presumption  flowing  from  a  compliance 
with  it,  or  taking  his  chances  before  the  court  or  a  jury  as  to  the  suffi- 
ciency of  the   marking. 

53  Comp.  Laws  1900,  §209;   amended,  Laws  1901,  p.  97;  Laws  1907, 
p.  418;   Kev.  Laws  1912,   §  24^23. 


§  374  MARKING  OF  LOCATION  ON  THE  SURFACE.  886 

New  Mexico. — No  time  is  provided  within  which 
marking  is  to  be  effected.  Ninety  days  are  allowed  to 
sink  discovery  shaft  and  three  months  to  record  copy 
of  notice  of  location.  The  inference  is  plausible  that 
the  locator  should  be  allowed  to  complete  his  develop- 
ment work  before  marking  his  boundaries."  In  any 
event,  he  is  allowed  a  reasonable  time.  Surface 
boundaries  are  to  be  marked  by  four  substantial  posts 
or  monuments,  one  at  each  corner  of  the  claim,  so  as  to 
distinctly  mark  the  claim  on  the  ground,  so  that  its 
boundaries  can  be  readily  traced. ^^ 

North  Dakota. — ^Before  filing  the  certificate  of  loca- 
tion for  record  (sixty  days  from  date  of  discovery),  the 
boundaries  shall  be  marked  by  eight  substantial  posts, 
hewed,  or  blazed,  on  the  side  facing  the  claim,  and 
marked  with  the  name  of  the  lode  and  the  corner,  end, 
or  side  of  the  claim  that  they  respectively  represent, 
and  sunk  into  the  ground  as  follows:  One  at  the  comer, 
and  one  at  the  center  of  each  side-line,  and  one  at  each 
end  of  the  lode;  but  when  it  is  impracticable,  on  ac- 
count of  rock  or  precipitous  ground,  to  sink  such  posts, 
they  may  be  placed  in  a  monument  of  stone." 

Oregon. — Within  thirty  days  after  posting  of  the 
notice  of  location  the  boundaries  shall  be  marked  by 
six  substantial  posts,  projecting  not  less  than  three  feet 
above  the  surface  of  the  ground,  and  not  less  than  four 
inches  square  or  in  diameter,  or  by  substantial  mounds 
of  stone  or  earth  and  stone,  at  least  two  feet  in 
height, — to  wit,  one  such  post  or  mound  of  rock  at 
each  comer  and  at  the  center  ends  of  such  claims." 

64  Ante,  §  372. 

65  Comp.  Laws  18&7,  §2299;   amended,  Laws  1S99,  p.   111. 

66  Eev.  Code  1895,  §§  1428,  1430,  1431;  Id.  1899,  §§  1428,  1430,  1431; 
Id.   1905,   §§  1802,   1804,   1805. 

57  Laws  1898,  p.  16,  as  amended— Laws  1901,  p.  140;  Bellinger  & 
Cotton's  Code,  §  3975;  Lord's  Or.  Laws,  §  5128;  Wright  v.  Lyons,  45 


887  STATE  STATUTES.  §  374 

South  JDahota. — Same  as  North  Dakota/^ 

Utah. — Mining  claims  must  be  distinctly  marked  on 
the  ground,  so  that  the  boundaries  thereof  can  be 
readily  traced.  No  time  is  fixed  within  which  this 
should  be  done.  The  sinking  of  a  discovery  shaft  is 
not  required.  The  locator  would  therefore  be  allowed 
a  reasonable  time  to  mark  his  boundaries." 

Washington. — The  locator  is  required  to  record  a 
notice  of  location  within  ninety  days  from  the  date  of 
discovery,  and  before  filing  the  same  for  record  must 
mark  the  surface  boundaries  of  the  claim  by  placing 
substantial  posts  or  stone  monuments,  bearing  the 
name  of  the  lode  and  date  of  location;  one  post  or 
monument  must  appear  at  each  corner  of  said  claim; 
such  posts  or  monuments  must  be  not  less  than  three 
feet  high.  If  posts  are  used,  they  shall  be  not  less  than 
four  inches  in  diameter  and  shall  be  set  in  the  ground 
in  a  substantial  manner.  If  the  claim  is  on  ground, 
wholly  or  partly  covered  with  brush  or  trees,  such 
brush  shall  be  cut  and  trees  marked,  or  blazed,  to  indi- 
cate the  lines  of  such  claim.**" 

Wyoming. — Substantially  the  same  as  Colorado.*^ 
While  the  requirements  of  these  several  laws  should 
be  fulfilled  to  a  reasonable  degree,  a  substantial  com- 
pliance, where  the  good  faith  of  the  locator  is  manifest, 

Or.  167,  77  Pac.  81,  82;  Sharkey  v.  Candiani,  48  Or.  112,  85  Pac.  219, 
221,  7  L.  R.  A.,  N.  S.,  791. 

68  Comp.  Laws  Dak.  1887,  §  2002.  Adopted  by  South  Dakota — Laws 
1890,  ch.  cv.;  Grantham's  Annot.  Stats.  S.  D.,  §2661;  Eev.  Pol.  Code 
(1903),   §2537. 

59  Laws  1899,  p.  26,  §  3;  Comp.  Laws  1907,  §  1497. 

60  Laws   1899,  p.   69 ;   Rem.  &  Bal.   Codes    1909,   §  7359. 

61  Laws  1888,  p.  88,  §  17;  Rev.  Stats.  1899,  §  2548;  Comp.  Stats. 
1910,  §  3469. 


§  375  MARKING  OF  LOCATION  ON  THE  SURFACE.  888 

would  undoubtedly  be  held  sufficient.  Such,  statutes 
are,  as  a  rule,  liberally  construed.  Slight  variations 
should  not  be  permitted  to  invalidate  a  location  other- 
wise valid. ®^ 

§  375.  Perpetuation  of  monuments.  —  Under  the 
rules  and  customs  governing  the  rights  of  tin  bounders 
in  Cornwall,  bounds  were  required  to  be  renewed  annu- 
ally, in  default  of  which  the  estate  was  subject  to  re- 
entry by  others.^^ 

These  bounds,  however,  were  marked,  and  posses- 
sion delivered  after  proceedings  had  in  the  stannary 
courts,  the  writ  of  possession  being  executed  by  the 
court  bailiff. 

The  ''gales"  of  the  free  miner,  in  the  coal  and  iron 
mines  of  the  Forest  of  Dean,  were  set  out  and  marked 
by  the  gaveler  of  the  forest;^*  and  among  the  lead 
miners  of  Derbyshire,  the  "meers"  were  measured  by 
the  bar-master,  an  agent  of  the  crown,  in  conjunction 
with  two  of  the  grand  jury.®^ 

In  Mexico,  the  boundaries  were  marked,  after  meas- 
urement, by  an  agent  of  the  mining  deputation,  who 
was  usually  a  skilled  engineer,  and  the  miner  was 
called  upon  to  enter  into  an  obligation  to  "keep  and 
observe  them  forever. ' '  ^® 

These  methods  of  establishing  boundaries,  succeed- 
ing, as  they  did,  a  formal  adjudication  as  to  the  right  to 

62  Walker  v.  Pennington,  27  Mont.  369,  71  Pac.  156,  158.  But  see 
Croesus  M.  &  M.  Co.  v.  Colorado  L.  &  M.  Co.,  19  Fed.  78,  79;  Taylor 
V.  Parenteau,  23  Colo.  368,  48  Pac.  505,  506,  18  Morr.  Min.  Rep.  534. 

63  Ante,   §  5. 

64  A7ite,  §  7. 

65  Ante,  §  8. 

66  Ante,  §  13,  p.  21. 


889  PERPETUATION    OF    MONUMENTS.  §  375 

possession,  suggest  the  propriety  of  permanency.  In 
the  United  States,  however,  we  are  required  to  mark  our 
boundaries  first,  and  determine  our  right  to  possession 
afterward.  Even  when  a  survey  for  patent  is  made, 
the  deputy  mineral  surveyor  is  an  agent  of  the  claim- 
ant, and  his  acts  in  no  sense  bind  the  government,"®" 
and,  as  we  shall  observe  when  dealing  with  patent  pro- 
ceedings, surveys  are  made,  in  the  first  instance,  of  the 
ground  claimed,  regardless  of  overlapping  surfaces  or 
interference  with  prior  surveys  or  locations.  Relative 
rights  arising  out  of  these  conflicts  are  frequently  not 
determined  until  after  long  litigation.  Therefore, 
there  would  be  but  little  use  in  compelling  the  erection 
of  indestructible  monuments  for  the  purpose  of  mark- 
ing the  extent  of  the  ground  claimed.  Ordinary  pru- 
dence will  suggest  to  the  locator  the  advisability  of 
preserving  his  marks.  A  failure  to  so  presei^ve  them 
exposes  the  owners  to  hazards  incurred  by  death  of 
locators  and  witnesses  and  other  circumstances  which 
might  prevent  the  fact  of  marking  from  being  estab- 
lished. Owners  should  therefore  use  reasonable  dili- 
gence in  presei^ving  and  restoring  their  boundary 
monuments.  No  presumptions  flowing  from  the  anti- 
quity of  the  location  will  be  indulged  in  as  to  the  orig- 
inal marking,  as  against  a  hostile  claimant."  But  the 
law  does  not  require  monuments  to  be  pei^^etuated. 
Therefore,  it  has  been  held  that  where  a  mining  claim 
is  once  sufficiently  marked  on  the  ground,  and  all  other 
necessary  acts  of  location  are  performed,  a  right  vests 
in  the  locator,  which  cannot  be  divested  by  the  subse- 

66a  The  United  States  supreme  court  has  said,  however,  that  "the 
work  which  they  do  is  the  work  of  the  government,  and  the  surveys 
which  they  make  are  its  surveys."  Waskey  v.  Hammer,  223  U.  S. 
85,  32  Sup.  Ct.  Rep.  187,  56  L.  ed.  359. 

67  Daggett  V.  Yreka  M.  &  M.  Co.,  149  Cal.  357,  86  Pac.  968,  970. 


§  375  MARKING  OF  LOCATION  ON  THE  SURFACE.  890 

quent  obliteration  of  the  marks  or  removal  of  the 
stakes  without  the  fault  of  the  locator." 

Where  the  evidence  shows  that  the  boundaries  were 
originally  marked,  the  fact  that  the  stakes  then  set 
could  not  in  later  years  be  found  raises  no  presumption 
against  the  validity  of  the  original  marking.^^ 

The  supreme  court  of  Colorado  suggests  a  sensible 
exception  to  this  rule:  Where  there  is  a  variation  be- 
tween the  calls  of  the  recorded  location  certificate  and 
the  monuments  established  on  the  ground,  the  locator, 
in  order  to  avail  himself  of  the  rule  of  law  which  gives 
controlling  effect  to  the  monuments  as  they  were  placed 
on  the  ground,  must  keep  up  his  markings.  The  rea- 
son given  in  support  of  this  is,  that  as  the  erroneous 
record  fails  to  give  constructive  notice,  if  the  monu- 
ments are  swept  away,  no  search,  no  exercise  of  pru- 
dence, diligence,  or  intelligence,  would  advise  the 
subsequent  locator  of  the  extent  and  limits  of  the  prior 
appropriation,'"  and  this  is  one  of  the  principal  objects 
of  marking.  The  rule  that  monuments  shall  control 
courses  and  distances  is  recognized  only  in  cases  where 
the  monuments  are  clearly  ascertained.  If  there  be 
doubt  as  to  monuments,  as  well  as  to  the  course  and 

68  Jupiter  M.  Co.  v.  Bodie  Cons.  M.  Co.,  7  Saw.  96,  110,  11  Fed.  666, 
677,  4  Morr.  Min.  Eep.  411;  Book  v.  Justice  M.  Co.,  58  Fed.  106,  114, 
17  Morr.  Min.  Eep.  617;  McEvoy  v.  Hyman,  25  Fed.  596,  598,  15  Morr. 
Min.  Eep.  397;  Smith  v.  Newell,  86  Fed.  56,  57;  Yreka  M.  Co.  v. 
Knight,  133  Cal.  544,  65  Pac.  1091,  1093,  21  Morr.  Min.  Eep.  478; 
Walsh  V.  Erwin,  115  Fed.  531,  537;  Slothower  v.  Hunter,  15  Wyo.  189, 
88  Pac.  36;  Walton  v.  Wild  Goose  M.  &  T.  Co.,  123  Fed.  209,  217,  60 
C.  C.  A.  155,  22  Morr.  Min.  Eep.  688;  Tonopah  &  Salt  Lake  M.  Co.  v. 
Tonopah  M.  Co.,  125  Fed.  389,  391. 

69  Temescal  Oil  &  D.  Co.  v.  Salcido,  137  Cal.  211,  69  Pac.  1010,  22 
Morr.  Min.  Eep.  360. 

70  Pollard  v.  Shively,  5  Colo.  309,  318;  Duncan  v.  Eagle  Eock  G.  M. 
&  E.  Co.,  48  Colo.  569,  139  Am.  St.  Eep.  288,  111  Pac.  588,  593. 


891 


THE  LOCATION  CERTIFICATE. 


§379 


distance,  there  can  be  no  reason  for  saying  that  monu- 
ments shall  prevail,  rather  than  the  course/^ 


Akticle  VIII. 


The  Location 
Its  Contents. 


Certificate  and 


"Natural  objects"  and 
"permanent  monu- 
ments." 

Effect  of  failure  to  com- 
ply with  the  law  as  to 
contents  of  certificate. 

Verification  of  certifi- 
cates. 


§  379.     The  location  certificate —      §  383. 
Its  purpose. 

§  380.     State     legislation     as     to 

contents  of  location  cer-       §  384. 
tificate. 

§  381.  Rules  of  construction  ap- 
plied. §  385. 

§  382.  Variation  between  de- 
scriptive calls  in  cer- 
tificate and  monuments 
on  the  ground. 


§  379.    The   location   certificate — Its   purpose. — In 

speaking  of  the  ''location  certificate,'.'  we  have  no  ref- 
erence to  the  preliminary  posted  notice  of  discovery 
and  intention  to  locate,  discussed  in  a  preceding 
article,"  except  in  so  far  as  such  posted  notice  forms 
the  basis  of  the  recorded  notice,  as  it  does  in  Arizona, 
California,  Oregon  and  Utah."  In  this  latter  class  of 
cases,  the  posted  notice  performs  the  function  of  a  cer- 
tificate of  location,  as  it  is  teiTQed  in  most  states,  the 
recorded  notice  being  either  a  copy  of  or  substantially 
conforming  to  the  posted  notice.''* 

71  Thallmann  v.  Thomas,  102  Fed.  935,  936;  Christman  v.  Simmons, 
47  Or.  184,  S2  Pac.  805,  807;  Resurrection  G.  M.  Co.  v.  Fortune  G.  M. 
Co.,  129  Fed.  668,  771,  64  C.  C.  A.  180;  Treadwell  v.  Marrs,  9  Ariz. 
333,  83  Pac.  350,  355;  Duncan  v.  Eagle  Rock  G.  M.  &  R.  Co.,  48  Colo. 
569,  139  Am.  St.  Rep.  288,  111  Pac.  588,  593;  post,  §§  382,  778. 

72  Ante,    §§    350-356. 

73  Ante,  §  353. 

74  Oregon  King  M.  Co.  v.  Brown,  119  Fed.  48,  57,  55  C.  C.  A.  626, 
22  Morr.  Min.  Rep.  414;  Green  v.  Gavin,  10  Gal.  App.  330,  101  Pac. 
931,   932. 


§  379        THE  LOCATION  CERTIFICATE  AND  ITS  CONTENTS.  892 

By  the  term  "certificate  of  location,"  we  mean  the 
instrument  prepared  by  the  locator  after  the  comple- 
tion of  the  development  work  and  the  marking  of  his 
location,  which  certificate  is  required  by  the  state  laws 
or  local  rules  to  be  recorded/^  This  instrument  when 
recorded  is  a  statutory  writing  affecting  realty,  being, 
in  the  states  or  localities  where  it  is  required,  the  basis 
of  the  miner's  "right  of  exclusive  possession"  of  his 
mining  location  granted  by  the  laws  of  congress/'  It 
is  the  first  muniment  of  his  paper  title,  upon  the  record 
of  which  proceedings  for  patent  are  based,  and  as  re- 
corded is  intended  to  impart  constructive  notice  to  all 
subsequent  locators  of  the  existence  of  the  claim,  its 
precise  locality  and  extent,'^  as  the  marking  of  the  loca- 
tion on  the  ground  is  intended  to  impart  actual  notice 
of  these  facts.  The  preliminary  posted  notice  per- 
forms a  temporary  function;  the  recorded  certificate  a 
more  permanent  one/®  This  recorded  certificate,  no- 
tice, or  declaratory  statement,  by  whatever  name  it 
may  be  called,  is  the  genesis  of  the  locator's  paper  title. 

The  congressional  laws  do  not  in  terms  require  any 
such  certificate,  but  they  provide  that,  where  a  record 
of  the  location  is  made,  such  record  "shall  contain  the 
name  or  names  of  the  locators,  the  date  of  the  location, 
and  such  a  description  of  the  claim  or  claims  located, 
by  reference  to   some   natural   object   or  permanent 

'5  The  distinction  between  a  notice  of  location  to  be  posted  and  a 
certificate  of  location  to  be  recorded  is  stated  in  Peters  v.  Tonopah 
M.  Co.,  laO  Fed.  587,  589;  Sanders  v.  Noble,  22  Mont.  110,  55  Pae. 
1037,  1046,  19  Morr.  Min.  Rep.  650. 

76  Pollard  V.  Shively,  5  Colo.  309,  312, 

77  Magruder  v.  Oregon  &  Cal.  R.  R.  Co.,  28  L.  D.  174. 

78  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037,  1046,  19  Morr.  Min. 
Rep.  650;  Gird  v.  California  Oil  Co.,  60  Fed.  531,  536,  18  Morr.  Min. 
Rep.   45. 


893  THE  LOCATION  CERTIFICATE.  §  379 

monument,  as  will  identify  the  claim."'®  In  the 
absence  of  a  state  law  or  local  rule  requiring  a  record 
to  be  made,  congress  has  not  undertaken  to  prescribe 
the  nature  of  the  notices  which  a  miner  may  be  com- 
pelled by  such  laws  or  rules  to  post,  or  which  he  may 
see  fit  to  post  on  his  own  motion.  It  is  only  when  such 
notice,  or  its  equivalent,  is  required  to  be  recorded  that 
the  provisions  of  the  federal  law  become  mandatory.^" 
Where  state  laws  or  local  rules  require  a  record  to  be 
made,  the  recorded  instrument  must  contain  at  least 
the  elements  provided  for  by  the  Revised  Statutes,^' 
and  if  such  state  laws  or  local  rules  prescribe  the  con- 
tents of  such  recorded  notice,  it  must  comply  with  this 
additional  requirement.*^ 

79  Eev.  stats.,  §  2324. 

80  Gleeson  v.  Martin  White  M.  Co.,  13  Nev,  443,  464;  Golden  Fleece 
M.  Co.  V.  Cable  Cons.  M.  Co.,  12  Nev.  312;  Jupiter  M.  Co.  v.  Bodie 
Cons.  M.  Co.,  7  Saw.  96,  112,  11  Fed.  666,  678,  4  Morr.  Min.  Rep.  411; 
Poujade  v.  Ryan,  21  Nev.  449,  33  Pac.  659,  660;  Doe  v.  Waterloo  C. 
M.  Co.,  55  Fed.  11,  13;  Erhardt  v.  Boaro,  113  U.  S.  527,  536,  5  Sup. 
Ct.  Rep.  560,  28  L.  ed.  1113,  15  Morr.  Min.  Rep.  472. 

81  Brown  v.  Levan,  4  Idaho,  794,  46  Pac.  661,  662  (but  see  Morri- 
son v.  Regan,  8  Idaho,  291,  67  Pac.  955,  957,  22  Morr.  Min.  Rep.  69)  ; 
Drummond  v.  Long,  9  Colo.  538,  13  Pac.  543,  544,  15  Morr.  Min.  Rep. 
510;  Faxon  v.  Barnard,  4  Fed.  702,  704,  2  McCrary,  44,  9  Morr.  Min. 
Rep.  515;  Gilpin  County  M.  Co.  v.  Drake,  8  Colo.  586,  9  Pac.  787,  788; 
Darger  v.  Le  Sieur,  8  Utah,  160,  30  Pac.  363,  364;  S.  C,  on  rehearing, 
9  Utah,  192,  33  Pac.  701;  Dillon  v.  Bayliss,  11  Mont.  171,  27  Pac.  725; 
Russell  V.  Chumasero,  4  Mont.  309,  1  Pac.  713,  15  Morr.  Min.  Rep.  508 
(this  case  commented  on  in  Piudum  v.  Laddin,  23  Mont.  387,  59  Pac.  153)  ; 
Garfield  M,  &  M.  Co.  v.  Hammer,  6  Mont.  53,  8  Pac.  153,  155;  Hammer  v. 
Garfield  M.  &  M.  Co.,  130  U.  S.  291,  9  Sup.  Ct.  Rep.  548,  32  L.  ed.  964,  16 
Morr.  Min.  Rep.  125;  Poujade  v.  Ryan,  21  Nev.  449,  33  Pac.  659,  660; 
Gleeson  v.  Martin  White  M.  Co.,  13  Nev.  443;  Smith  v.  Newell,  86  Fed. 
56,  57;  Meydenbauer  v.  Stevens,  78  Fed.  787,  792,  18  Morr.  Min.  Rep. 
578;  Deeney  v.  Mineral  Creek  M.  Co.,  11  N.  M.  279,  67  Pac.  724,  725,  22 
Morr.  Min.  Rep.  47;  Baker  v.  Butte  City  Water  Co.,  28  Mont.  222, 
104  Am.  St.  Rep.  683,  72  Pac.  617,  618;  Butte  City  Water  Co.  v.  Baker, 
196  U.  S.  119,  124,  25  Sup.  Ct.  Rep.  211,  49  L.  ed.  409;  Mares  v. 
Dillon,  30  Mont.  117,  75  Pac.  963,  965. 

82  Puidum  v.  Laddin,  23  Mont.  387,  59  Pac.  153,  154. 


§  380        THE  LOCATION  CERTIFICATE  AND  ITS  CONTENTS.  894 

A  few  of  the  states  provide  for  a  record,  but  do  not 
prescribe  the  contents  of  the  notice  or  certificate  to  be 
recorded.  In  such  cases  compliance  with  the  federal 
law  is  all  that  is  necessary.  Most  of  the  states,  how- 
ever, within  the  purview  of  this  treatise  have  provided 
by  law  for  the  contents  of  such  instruments.  Before 
proceeding  with  a  discussion  of  the  nature  of  these  cer- 
tificates it  is  advisable  to  present  an  outline  of  the  state 
legislation  upon  the  subject. 

§  380.  State  legislation  as  to  contents  of  location 
certificate. — 

California  requires  a  copy  of  the  posted  notice  to  be 
recorded,  which  notice  must  contain  (1)  the  name  of 
the  lode;  (2)  the  name  of  the  locator;  (3)  the  number  of 
linear  feet  claimed  in  length  along  the  course  of  the 
vein,  each  way  from  the  point  of  discoveiy,  with  the 
width  on  each  side  of  the  center  of  the  claim,  and  the 
general  course  of  the  vein  or  lode  as  near  as  may  be; 
(4)  the  date  of  the  location;  (5)  such  a  description  of 
the  claim  by  reference  to  some  natural  object  or  perma- 
nent monument  as  will  identify  the  claim  located." 

Colorado. — The  location  certificate  must  contain;  (1) 
name  of  the  lode;  (2)  name  of  locator;  (3)  date  of  loca- 
tion; (4)  number  of  feet  in  length  claimed  on  each  side 
of  the  center  of  discovery  shaft;  (5)  the  general  course 
of  the  lode;**  (6)  a  description  of  the  claim  sufficient  to 
identify  it." 

83  Civ.  Code,  §  1426. 

84  Mills'  Annot.  Stats.,  §3150;  Gen.  Stats.  1883,  p.  722;  Eev.  Statg. 
1908,  §4194. 

85  Mills'  Annot.  Stats.,  §3151;  Gen.  Stats.  1883,  p.  722;  Rev.  Stats. 
1908,  §  4195.  See  Duncan  v.  Fulton,  15  Colo.  App.  140,  61  Pac.  244^ 
246,  20  Morr,  Min.  Eep.  522. 


895  STATE  STATUTES.  §  380 

Idaho. — The  laws  of  Idaho  provide  for  two  notices: 
one  preliminary,  to  be  posted  only;  the  other  a  final 
one,  to  be  both  posted  and  recorded.'®  The  final  no- 
tice must  contain:  (1)  name  of  locator;  (2)  name  of  the 
claim;  (3)  date  of  discover^';  (4)  direction  and  distance 
claimed  along  the  ledge  from  the  discovery;  (5)  dis- 
tance claimed  on  each  side  of  the  middle  of  the  ledge; 
(6)  distance  and  direction  from  discovery  monument 
to  some  natural  object  by  which  the  claim  may  be  iden- 
tified; (7)  name  of  mining  district,  county,  and  state.®^ 

Arizona. — The  notice  or  certificate  of  location,  which 
is  copy  of  the  posted  notice,  must  contain:  (1)  name  of 
the  claim;  (2)  name  of  locator;  (3)  date  of  location; 
(4)  length  and  width  of  the  claim  in  feet,  and  number 
of  feet  claimed  on  each  side  of  point  of  discovery  to 
each  end  of  the  claim;  (5)  general  course  of  the  claim; 
(6)  the  locality  of  the  claim  with  reference  to  some 
natural  object  or  permanent  monument  as  will  identify 
the  claim.** 

Montana. — The  instrument  which  is  to  be  recorded 
is  called  the  "certificate  of  location."  It  must  con- 
tain: (1)  name  of  lode  or  claim;  (2)  name  of  locator; 
(3)  date  of  location,  and  such  a  description  with  refer- 
ence to  natural  objects  or  permanent  monuments  as 
will  identify  the  claim;  (4)  the  direction  and  distance 
claimed  along  the  course  of  the  vein  each  way  from 
discovery  shaft,  cut  or  tunnel,  with  the  width  on  each 

e«  Ante,   §  354. 

8T  Laws  1896,  p.  25,  §2,  as  amended— Laws  1899,  p.  633;  Civ.  Code 
1901,  §2557;  Laws  1895,  p.  26;  Laws  1899,  p.  633;  Rev.  Code  1907, 
§  3207.  See  Morrison  v.  Regan,  8  Idaho,  291,  67  Pac.  955,  957,  22 
Morr.  Min.  Rep.  69;  explaining  Clearwater  Shortline  Ry.  v.  San  Garde, 
7  Idaho,  106,  61  Pac.  137,  138;  Brown  v.  Levan,  4  Idaho,  794,  46  Pac. 
661,  662. 

88  Rev.  Stats.  1901,  §§  3232,  3234;  amended  Stats.  1909,  p.  157.  See 
Wiltsee  v.  King  of  Arizona  M.  &  M.  Co.,  7  Ariz.  95,  60  Pac.  896,  897. 


§  380        THE  LOCATION  CERTIFICATE  AND  ITS  CONTENTS. 


896 


side  of  the  center  of  tlie  vein.  The  locator  and  claim- 
ant may  at  his  option  also  set  forth  in  the  certificate  a 
description  of  the  discovery  work,  the  corner  monu- 
ments and  the  markings  thereon,  and  any  other  facts 
showing  a  compliance  with  the  provisions  of  the  law. 
The  certificate  of  location  must  be  verified  by  the  oath 
of  a  locator,  or  one  of  the  locators,  and,  in  case  of  a  cor- 
poration, by  a  duly  authorized  officer.  A  certificate  of 
location  so  verified,  or  a  certified  copy  thereof,  is  prima 
facie  evidence  of  all  facts  properly  recited  therein.^® 

The  statute,  with  the  exception  of  the  optional 
clauses,  is  mandatory,  and  a  substantial  compliance 
with  its  provisions  is  necessary  to  perfect  a  valid  loca- 
tion.''^ 

Nevada. — ^Within  ninety  days  after  the  date  of  post- 
ing the  notice  the  locator  must  record  a  location  cer- 
tificate which  shall  contain:  (1)  the  name  of  the  lode 
or  vein;  (2)  the  name  of  the  locators;  (3)  the  date  of 
the  location  and  such  description  of  the  location  of  the 
claim  with  reference  to  some  natural  object  or  perma- 
nent monument  as  will  identify  the  claim;  (4)  the  num- 
ber of  linear  feet  claimed  in  length  along  the  course 
of  the  vein  each  way  from  the  point  of  discovery  with 
the  width  on  each  side  of  the  center  of  the  vein  and 
the  general  course  of  the  lode  or  vein  as  near  as  may 
be;  (5)  the  dimensions  and  location  of  the  discovery 

89  Rev.  Pel.  Code  1895,  §  3612,  as  amended — Laws  1901,  p.  141,  §  2; 
Stats.  1907,  p.  18;  Eev.  Code  1907,  §  2284. 

90  Purdum  v.  Laddin,  23  Mont.  387,  59  Pac.  153,  154.  See,  also, 
Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037,  1041,  19  Morr.  Min.  Rep. 
650;  Walker  v.  Pennington,  27  Mont.  369,  71  Pac.  156;  Hahn  v.  James, 
29  Mont.  1,  73  Pac.  965,  966;  Wilson  v.  Freeman,  29  Mont.  470,  75 
Pac.  84,  86,  68  L.  R.  A.  833,  and  note;  Dolan  v.  Passmore,  34  Mont. 
277,  85  Pac.  1034,  1035;  Helena  Gold  &  Iron  Co.  v.  Baggaley,  34  Mont. 
464,  87  Pac.  455,  457;  Butte  Consol.  M.  Co.  v.  Barker,  35  Mont.  327, 
89  Pac.  302,  303,  90  Pac.  177;  Giberson  v.  Tuolumne  Copper  Co.,  41 
Mont.  396,  109  Pac.  974,  975. 


897  STATE   STATUTES.  §  380 

shaft  or  its  equivalent,  sunk  upon  the  claim;  (6)  tlie 
location  and  description  of  each  comer  with  the  mark- 
ings thereon."^ 

New  Mexico. — A  copy  of  the  posted  notice  is  re- 
quired to  be  recorded.  This  must  contain:  (1)  the 
names  of  the  locators;  (2)  the  intent  to  locate  the 
claim;  (3)  a  description  by  reference  to  some  natural 
object  or  permanent  monument." 

North  Dakota. — The  location  certificate  must  con- 
tain: (1)  name  of  lode;  (2)  name  of  locator;  (3)  date 
of  location;  (4)  number  of  feet  in  length  claimed  on 
each  side  of  the  discover}?-  shaft;  (5)  number  of  feet 
in  width  claimed  on  each  side  of  lode;  (6)  general 
course  of  lode  as  near  as  may  be;"  (7)  such  a  descrip- 
tion as  shall  identify  the  claim  with  reasonable  cer- 
tainty."* 

Oregon. — The  location  notice  to  be  recorded  is  a  copy 
of  the  one  posted,  which  must  contain:  (1)  name  of  the 
lode  or  claim;  (2)  name  of  locator;  (3)  date  of  loca- 
tion; (4)  number  of  linear  feet  claimed  along  the  lode 
each  way  from  the  point  of  discovery  with  the  width 
on  each  side  of  the  lode;  (5)  the  general  course  or 
strike  of  the  vein  as  nearly  as  may  be  with  reference 
to  some  natural  object  or  permanent  monument  in  the 
vicinity  thereof." 

91  Comp.  Laws  1900,  §210;  amended,  Laws  1907,  p.  420;  Rev.  Laws 
1912,   §2424. 

92  Comp.  Laws  1884,  §1566;  Id.  1897,  §2286;  ayite,  §353.  Under 
this  statute  posting  and  discovery  must  be  contemporaneous,  no  appre- 
ciable time  being  allowed  between  the  discovery  and  the  posting  of 
the  statutory  notice.  Moreover,  the  notice  must  be  such  as,  when 
recorded,  will  fulfill  the  requirements  of  the  federal  statute. 

M  Rev.  Code  1895,  §  1428;  Id.   1899,  §  1428;  Id.  1905,  §  1802. 
94  Rev.  Code  1895,  §  1429;  Id.  1899,  §  1429;  Id.   1905,  §  1803. 
96  Laws   1898,  p.   16,  as   amended — Laws   1901,  p.   140;   Bellinger   & 
Cotton's  Code,  §§3975,  3976;  Lord's  Or.  Laws,  §§5128,  5129. 
Lindley  on  M. — 57 


§  380        THE  LOCATION  CEKTIFICATE  AND  ITS  CONTENTS.  898 

South  Dakota. — The  requirements  as  to  certificate  of 
location  are  tlie  same  as  in  North  Dakota.®' 

Utah. — The  requirements  as  to  the  contents  of  the 
location  notice  are  substantially  the  same  as  those  of 
Oregon.®^ 

Washington. — The  location  notice  is  required  to  con- 
tain: (1)  name  of  locator;  (2)  date  of  location;  (3) 
number  of  feet  in  length  claimed  on  each  side  of  the 
discovery;  (4)  the  general  course  of  the  lode;  (5)  such 
a  description  by  reference  to  natural  objects  or  per- 
manent monuments  as  will  identify  the  claim." 

Wyoming. — The  certificate  must  contain:  (1)  name 
of  the  lode;  (2)  name  of  the  locator  or  locators;  (3) 
date  of  location;  (4)  length  of  claim  along  the  vein,  v 
measured  from  center  of  discovery  shaft,  and  general 
course  of  the  vein  as  far  as  known;  (5)  amount  of  sur- 
face ground  claimed  on  either  side  of  the  center  of  the 
discovery  shaft  or  workings;  (6)  a  description  of  the 
claim  by  such  designation  of  natural  or  fixed  objects 
as  will  identify  the  claim  beyond  question." 

9«  Comp.  Laws  1887,  §§  1999,  2000.  Adopted  by  South  Dakota^ 
Laws  1890,  ch.  cv,  §  1;  Grantham's  Annot.  Stats.  S.  D.  1899,  §  2658,  as 
amended— Laws  1899,  p.  146;  Rev.  Pol.  Code  1903,  §  2534;  amended, 
Laws  1903,  p.  268. 

87  Laws  1899,  p.  26;  Comp.  Laws  1907,  §§  1496,  1498;  amended, 
Stats.  1909,  p.  79. 

88  Ballinger's  Supp.  1901,  §  3151a;  Rem.  &  Bal.  Codes  1909,  §  7358. 
Statute  held  valid  and  obligatory,  Knutson  v.  Fredlund,  56  Wash.  634, 
106  Pac.  200. 

99  Session  Laws  1890-91,  ch.  xlvi,  pp.  17&,  180,  amended — Laws 
1895,  ch.  cviii,  §  1;  Rev.  Stats.  1899,  §  2546;  Comp.  Stats.  1910,  §  3467. 
Statute  held  valid  and  mandatory,  Slothower  v.  Hunter,  15  Wyo.  189, 
88  Pac.  36,  39.  For  a  notice  held  sufficient  under  this  section,  see 
Columbia  Copper  Co.  v.  Duchess  M.  &  M.  Co.,  13  Wyo.  244,  79  Pac. 
385,  386;  Bergquist  v.  West  Virginia  and  Wyoming  Copper  Co.,  18 
Wyo.  234,  106  Pac.  673,  677. 


89S  EULES   OF   CONSTRUCTION.  §  381 

§  381.  Rules  of  construction  applied. — ^Tn  the  initia- 
tion of  rights  upon  public  mineral  lands,  as  well  as  in 
the  various  steps  taken  by  the  miner  to  perfect  his  loca- 
tion, his  proceedings  are  to  be  regarded  with  indul- 
gence, and  the  notices  required  invariably  receive  at 
the  hands  of  the  courts  a  liberal  construction. ^°°  The 
mining  laws  are  ''to  be  expounded  with  as  little  dif- 
ferentiation as  may  be  between  former  known  actual 
customs  of  miners  and  the  formulated  expressions  of 
congress  based  upon  those  customs  in  present  positive 
law."^ 

The  courts  always  construe  these  notices  liberally, 
and  if  by  any  intendment  the  proof  can  be  reconciled 
and  made  consistent  with  the  statement  contained  in 
them,  the  jury  will  be  allowed  to  say  whether  or  not, 
upon  the  whole  proof,  the  identification  is  sufficient.^ 

To  hold  the  locator  to  absolute  technical  strictness  in 
all  the  minor  details  would  be  practically  to  defeat  the 

100  Carter  v.  Bacigalupi,  83  Cal.  187,  23  Pae.  361,  363;  Farminffton 
G.  M.  Co.  V.  Ehymney  G.  &  C.  Co.,  20  Utah,  363,  77  Am.  St.  Eep.  913, 
58  Pac.  832,  833;  Fissure  M.  Co.  v.  Old  Susan  M.  Co.,  22  Utah,  438, 
63  Pac.  587,  588,  21  Morr.  Min.  Rep.  125;  Wiltsee  v.  King  of  Arizona 
M.  &  M.  Co.,  7  Ariz.  95,  60  Pac.  896,  898;  Talmadge  v.  St.  John,  129 
Cal.  430,  62  Pac.  79,  80,  21  Morr.  Min.  Rep.  13;  Morrison  v.  Regan, 
8  Idaho,  291,  67  Pac.  955,  957,  22  Morr.  Min.  Rep.  69;  Columbia  Copper  M. 
Co.  V.  Duchess  M.  Co.,  13  Wyo.  244,  79  Pac.  385,  387;  Londonderry  M. 
Co.  V,  United  Gold  Mines  Co.,  38  Colo.  480,  88  Pac.  455,  457;  Bismark 
Mt.  G.  M.  Co.  V.  North  Sunbeam  G.  Co.,  14  Idaho,  516,  95  Pac.  14,  17; 
Oregon  King  M.  Co.  v.  Brown,  119  Fed.  48,  55  C.  C.  A.  626,  22  Morr. 
Min.  Rep.  414;  Zerres  v.  Vanina,  134  Fed.  610,  616;  S.  C,  in  error, 
150  Fed.  564,  80  C.  C.  A,  366;  Green  v.  Gavin,  10  Cal.  App.  330,  101 
Pac.  931,  932;  Snowy  Peak  Min.  Co.  v.  Tamarack  &  Chesapeak  M.  Co.. 
17  Idaho,  630,  107  Pac.  60,  63;  Flynn  Group  M.  Co.  v.  Murphy,  18 
Idaho,  266,  138  Am.  St.  Rep.  201,  109  Pac.  851,  855,  1  Water  &  Min. 
Cas.  619;  Prince  of  Wales  Lode,  2  Copp's  L.  O.  2,  3. 

1  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037,  19  Morr.  Min. 
Eep.  650. 

2  Bramlett  v.  Flick,  23  Mont.  95,  57  Pac.  S69,  20  Morr.  Min.  Rep. 
103. 


§  381      THE    LOCATION    CERTIFICATE    AND    ITS    CONTENTS.  900 

manifest  end  and  object  of  the  law.  The  pioneer  pros- 
pector, as  a  rule,  is  neither  a  lawyer  nor  a  surveyor. 
Neither  mathematical  precision  as  to  measurement 
nor  technical  accuracy  of  expression  in  the  preparation 
of  notices  is  either  contemplated  or  required.'  The 
law  being  designed  for  the  encouragement  and  benefit 
of  the  miners  should  be  liberally  interpreted,* ' '  looking 
to  substance,  rather  than  shadow,  and  should  be  ad- 
ministered on  the  lines  of  obvious  common  sense."* 
Mere  imperfections  in  the  certificate  will  not  render  it 
void.® 
As  was  said  by  the  supreme  court  of  Utah, — 

If  by  any  reasonable  construction,  in  view  of  the 
surrounding  circumstances,  the  language  employed 
in  the  description  will  impart  notice  to  subsequent  v 
locators,  it  is  sufficient.'' 

3  Book  V.  Justice  M.  Co.,  58  Fed.  106,  115,  17  Morr.  Min.  Eep.  617; 
Smith  V.  Newell,  86  Fed.  56;  Sanders  v.  Noble,  22  Mont.  110,  55  Pac. 
1037,  1047,  19  Morr.  Min.  Rep.  650;  Wilson  v.  Triumph  Cons.  M.  Co., 
19  Utah,  66,  75  Am.  St.  Rep.  718,  56  Pac.  300,  302;  Farmington  G.  M. 
Co.  V.  Rhymney  G.  &  C.  Co.,  20  Utah,  363,  77  Am.  St.  Rep.  913,  58 
Pac.  832,  834;  Morrison  v.  Regan,  8  Idaho,  291,  67  Pac.  955,  958,  22 
Morr.  Min.  Rep.  69 ;  Kern  Oil  Co.  v.  Crawford,  143  Cal.  298,  76  Pac. 
1111,  1112,  3  L.  R.  A.,  N.  S.,  993;  Bonanza  Cons.  M.  Co.  v.  Golden  Head 
M.  Co.,  29  Utah,  159,  80  Pac.  736,  738;  Walton  v.  Wild  Goose  M.  & 
T.  Co.,  123  Fed.  209,  215,  60  C.  C.  A.  155,  22  Morr.  Min.  Rep.  688; 
Tonopah  &  Salt  Lake  M.  Co.  v.  Tonopah  M.  Co.,  125  Fed.  389,  392; 
Green  v.  Gavin,  10  Cal.  App.  330,  101  Pac.  931,  932. 

*  Meydenbauer  v.  Stevens,  78  Fed.  787,  792,  18  Morr.  Min.  Rep.  578; 
Sanders  v.  Noble,  22  Mont.  110,  55  Pae.  1037,  1046,  19  Morr.  Min.  Rep. 
650;  Bramlett  v.  Flick,  23  Mont.  95,  57  Pac.  869,  872,  20  Morr.  Min. 
Eep.  103. 

6  Cheesman  v.  Hart,  42  Fed.  98,  99,  16  Morr.  Min.  Rep.  265. 

6  Bennett  v.  Harkrader,  158  U.  S.  441,  443,  15  Sup.  Ct.  Rep.  863, 
39  L.  ed.  1046,  18  Morr.  Min.  Rep.  224;  Farmington  G.  M.  Co.  v. 
Rhymney  G.  &  C.  Co.,  20  Utah,  363,  77  Am.  St.  Rep.  913,  58  Pac.  832, 
833;  Wells  v.  Davis,  22  Utah,  322,  62  Pac.  3,  4,  21  Morr.  Min.  Rep.  1; 
Walker  v.  Pennington,  27  Mont.  369,  71  Pac.  156;  Webb  v.  Carlon,  148 
Cal.  555,   113   Am.   St.  Rep.   305,   83   Pac.   998. 

7  Wells  v.  Davis,  22  Utah,  322,  62  Pac.  3,  4,  21  Morr.  Min.  Rep. 
1;  Bonanza  Cons.  M.  Co.  v.  Golden  Head  M.  Co.,  29  Utah,  159,  80  Pac- 


901  RULES   OF   CONSTRUCTION.  §  381 

Whether  the  notice  conforms  to  the  statutory  re- 
quirement is  a  question  of  fact,  not  of  law.^ 

If  the  court  cannot  say  from  an  inspection  of  the  no- 
tice that  the  description  is  an  impossible  one,  it  may 
be  admitted  in  evidence.' 

An  error  of  description  which  is  obvious  is  harmless, 
if  there  is  sufficient  in  the  notice  to  enable  the  next 
comer  to  determine  the  locus  of  the  claim.^° 

In  matters  of  description,  calls  that  are  erroneous 
will  not  destroy  the  validity  of  the  notice  or  certificate, 
if  by  excluding  them  a  sufficient  description  remain 
to  enable  its  application  to  be  ascertained.^^ 

Thus,  where  a  certificate  of  a  location  specified  its 
situs  as  being  in  the  wrong  county,  it  being  otherwise 
valid,  and  having  been  recorded  in  the  right  county,  the 
erroneous  statement  was  mere  surplusage,  and  as  such 
was  rejected." 

736,  738;  Bismark  Mt.  Gold  M.  Co.  v.  North  Sunbeam  Gold  Co.,  14 
Idaho,  516,  95  Pac.  14,  17;  Tiggeman  v.  Mrzlak,  40  Mont.  19,  105 
Pac.  77,  80;  Snowy  Peak  M.  Co.  v.  Tamarack  &  Chesapeak  M.  Co., 
17  Idaho,  630,  107  Pac.  60,  63;  Flynn  Group  M.  Co.  v.  Murphy,  18 
Idaho,  266,  138  Am.  St.  Rep.  201,  109  Pac.  851,  855,  1  Water  &  Min.  Cas. 
619;  Street  v.  Delta  M.  Co.,  42  Mont.  371,  112  Pac.  701,  705. 

8  Bismark  Mt.  G.  M.  Co.  v.  North  Sunbeam  G.  M.  Co.,  14  Idaho,  516, 
95  Pac.  14,  19. 

9  Snowy  Peak  M.  Co.  v.  Tamarack  &  Chesapeak  M.  Co.,  17  Idaho. 
630,  107  Pac.  60,  63. 

10  Sturtevant  v.  Vogel,  167  Fed.  448,  453,  93  C.  C.  A.  84.  Far  apt 
illustration  of  this  principle,  see  Green  v.  Gavin,  10  Cal.  App.  330, 
101  Pac.  931. 

11  Duryea  v.  Boucher,  67  Cal.  141,  7  Pac.  421,  422.;  Smith  v.  Newell, 
86  Fed.  56,  57;  Bramlett  v.  Flick,  23  Mont.  95,  57  Pac.  869,  871,  20 
Morr.  Min.  Eep.  103;  Mitchell  v.  Hutchinson,  142  Cal.  404,  76  Pac.  55; 
Kern  Oil  Co.  v.  Crawford,  143  Cal.  298,  76  Pac.  1111,  1112,  3  L.  R.  A., 
N.  S.,  993;  Upton  v.  Santa  Rita  M.  Co.,  14  N.  M.  96,  89  Pac.  275,  281; 
Green  v.  Gavin,  10  Cal.  App.  330,  101  Pac.  931,  933. 

12  Metcalf  V.  Prescott,  10  Mont.  2S3,  25  Pac.  1037,  1  Morr.  Min.  Rep. 
137.  Note  the  difference  in  case  of  notice  of  application  for  patent 
where  this  defect  would  render  such  notice  void.  Wright  v.  Sioux 
Cons.  M.  Co.,  29  L.  D.  154;   S.  C,  29  L.  D.  289. 


§  381      THE   LOCATION    CERTIFICATE    AND   ITS   CONTENTS.  902 

An  error  in  the  date  of  the  location  specified  in  the 
notice  does  not  prevent  the  locator  from  showing  the 
true  date." 

In  the  absence  of  a  local  requirement  to  that  effect, 
the  certificate  need  not  state  either  the  district,  county, 
or  state  in  which  the  location  is  situated." 

And  where  a  state  statute  requires  two  notices,  one 
preliminary,  and  the  other  final,  if  the  former  contained 
the  name  of  the  county,  and  the  final  one  omitted  it, 
but  refers  to  the  preliminary  notice,  the  defect  is 
cured.^" 

The  position  of  the  monuments  as  built  upon  the 
ground  may  be  described  in  such  a  way  as  to  direction 
as  to  be  confusing.  But  if  the  other  statutory  require- 
ments were  complied  with,  the  notice  would  be  suffi- 
ciently correct  to  allow  its  admission  in  evidence." 

A  mistake  in  the  certificate  as  to  the  direction  and 
course,  such  as  ''northerly"  instead  of  "northeast- 
erly," the  description  being  aided  by  monuments  on 
the  ground,  is  of  no  moment." 

The  certificate  is  not  required  to  show  the  precise 
boundaries  of  the  claim  as  marked  on  the  ground,  but  it 
is  sufficient  if  it  contains  directions,  which,  taken  in 
connection  with  such  boundaries,  will  enable  a  person 

13  Webb  V.  Carlon,  148  Cal.  555,  113  Am.  St.  Rep.  305,  83  Pac.  998. 
1*  Carter  v.  Bacigalupi,  83  Cal.  187,  23  Pac.  361,  363. 
16  Talmadge  v.  St.  John,  129  Cal.  430,  62  Pac.  79,  80. 

16  Kinney  v.  Fleming,  6  Ariz.  263,  56  Pac.  723,  20  Morr.  Min.  Eep. 
13;  Providence  G.  M.  Co.  v.  Burke,  6  Ariz.  323,  57  Pac.  641,  19  Morr. 
Min.  Rep.  625;  Bramlett  v.  Flick,  23  Mont.  95,  57  Pac.  869,  20  Morr. 
Min.  Rep.   103. 

17  Book  V.  Justice  M.  Co.,  58  Fed.  106,  115,  17  Morr.  Min.  Rep. 
617;  Meydenbauer  v.  Stevens,  78  Fed.  787,  792,  18  Morr.  Min.  Rep. 
578;  Sanders  v.  Noble,  22  Mont.  110,  55  Pac.  1037,  1046,  19  Morr. 
Min.  Rep.  650;  Bramlett  v.  Flick,  23  Mont.  95,  57  Pac.  869,  871,  20 
Morr.  Min.  Rep.  103;  Wiltsee  v.  King  of  Arizona  M.  Co.,  7  Ariz.  95, 
60  Pac.  89G,  898;  Gibson  v.  Hjul,  32  Nev.  360,  108  Pac.  759,  762. 


903  RULES   OF   CONSTRUCTION.  §  381 

of  reasonable  intelligence  to  find  the  claim  and  trace 
the  lines.'* 

The  object  of  any  notice  at  all  being  to  guide  the  sub- 
sequent locator  and  afford  him  information  as  to  the 
extent  of  the  claim  of  the  prior  locator,  whatever  does 
this  fairly  and  reasonably  should  be  held  to  be  a  goo(i 
notice.'^  Great  injustice  would  follow  if,  years  after  a 
miner  had  located  a  claim  and  taken  possession,  and 
worked  upon  it  in  good  faith,  his  notice  of  location 
were  to  be  subject  to  any  very  nice  criticism." 

18  Brady  v,  Husby,  21  Nev.  453,  33  Pae.  801;  Duncan  v.  Fulton, 
15  Colo.  App.  140,  61  Pac.  244,  248,  20  Morr.  Min.  Rep.  522;  Bramlett 
V.  Flick,  23  Mont.  95,  57  Pac.  869,  871,  20  Morr.  Min.  Rep.  103;  Smith 
V.  Newell,  86  Fed.  56;  Kinney  v.  Fleming,  6  Ariz.  263,  56  Pac.  723,  724, 
20  Morr.  Min.  Rep.  13;  Providence  G.  M.  Co.  v.  Burke,  6  Ariz.  323,  57 
Pac.  641,  645,  19  Morr.  Min.  Rep.  625;  Morrison  v.  Regan,  8  Idaho,  291,. 
67  Pac.  955,  958,  22  Morr.  Min.  Rep.  69;  Gamer  v.  Glenn,  8  Mont.  371, 
20  Pac.  654,  657;  Upton  v.  Larkin,  7  Mont.  449,  17  Pac.  728,  730,  15 
Morr.  Min.  Rep.  404;  Flavin  v.  Mattingly,  8  Mont.  242,  19  Pac.  384,  385; 
Mitchell  V.  Hutchinson,  142  Cal.  404,  76  Pac.  55. 

The  adoption  in  Montana  of  a  more  exacting  law  (Pol.  Code  of 
1895,  §  3612— amended.  Stats.  1901,  p.  140;  Stats.  1907,  p.  18;  Rev. 
Code  (1907)  §2284)  has  rendered  the  earlier  Montana  cases  inap- 
plicable in  that  state.  Purdura  v.  Laddin,  23  Mont.  387,  59  Pac.  153, 
154;  Baker  v.  Butte  City  Water  Co.,  28  Mont.  222,  104  Am.  St.  Rep. 
6&3,  72  Pac.  617,  618;  Butte  City  Water  Co.  v.  Baker,  196  U.  S.  119, 
127,  25  Saip.  Ct.  Rep.  211,  49  L.  ed.  409;  Dolan  v.  Passmore,  34  Mont. 
277,  85  Pac.  1034,  1035;  Helena  Gold  &  Iron  Co.  v.  Baggaley,  34  Mont. 
464,  87  Pac.  455,  457.  And  see  Clearwater  etc.  Ry.  Co.  v.  San  Garde, 
7  Idaho,  106,  61  Pac.  137,  138;  Brown  v.  Levan,  4  Idaho,  794,  46  Pac. 
661  (explained  in  Morrison  v.  Regan,  8  Idaho,  291,  67  Pac.  955,  22 
Morr.  Min.  Rep.  69). 

19  Londonderry  M.  Co.  v.  United  Gold  Mines  Co.,  38  Colo.  480,  88 
Pac.  455,  457;  Bismark  Mt.  G.  M.  Co.  v.  North  Sunbeam  G.  M.  Co.,  14 
Idaho,  516,  95  Pac.  14,  17;  Smith  v.  Cascaden,  148  Fed.  792,  794,  78 
C.  C.  A.  458. 

20  Mt.  Diablo  M.  &  M.  Co.  v.  Callison,  5  Saw.  439,  Fed.  Cas.  No. 
9886,  19  Morr.  Min.  Rep.  616;  Talmadge  v.  St.  John,  129  Cal.  430, 
62  Pac.  79,  80,  21  Morr.  Min.  Rep.  13. 


§  382      THE    LOCATION    CERTIFICATE    AND    ITS    CONTENTS.  904 

§  382.  Variation  between  calls  in  certificate  and 
monuments  on  the  ground. — When  it  is  once  conceded 
that  a  recorded  certificate  of  location  is  a  statutory  in- 
strument affecting  real  property,"  it  follows  that  gen- 
eral rules  regarding  descriptive  calls  in  this  class  of 
instruments  apply  generally  to  the  construction  of  such 
certificates.  But  it  has  been  held  that  where  the  posi- 
tion of  the  monuments  as  built  upon  a  mining  claim  are 
described  in  such  a  way  as  to  direction  as  to  be  con- 
fusing, the  notice  would  nevertheless  be  sufficiently  cor- 
rect to  be  admitted  in  evidence." 

Mr.  Washburn  states  the  general  rule  to  be,  that 
courses  and  distances  are  generally  regarded  as  more 
or  less  uncertain,  and  always  give  place,  in  questions  of 
doubt  or  discrepancy,  to  monuments  and  boundaries 
that  are  referred  to  as  indicating  and  identifying  the 
land." 

This  doctrine  has  been  uniformly  applied  by  the 
courts  to  certificates  of  location  of  mining  claims,"  and 

21  Ante,  §  379. 

22  Kinney  v.  Fleming,  6  Ariz.  263,  58  Pac.  722,  723,  20  Morr.  Min. 
Eep.  13;  Providence  G.  M.  Co.  v.  Burke,  6  Ariz.  323,  57  Pac.  641,  644, 
19  Morr.  Min.  Eep.  625;  Bramlett  v.  Flick,  23  Mont.  95,  57  Pac.  869, 
871,  20  Morr.  Min.  Rep.  103. 

23  Washburn  on  Real  Property,  3d  ed.,  p.  348;  2  Devlin  on  Deeds, 
§1029;  Garrard  v.  Silver  Peak  Mines,  82  Fed.  578,  585;  Belden  v. 
Hebard,  103  Fed.  532,  542,  43  C.  C.  A.  296. 

24  Pollard  V.  Shively,  5  Colo,  309,  313;  Book  v.  Justice  M.  Co.,  58 
Fed.  106,  115,  17  Morr.  Min.  Rep.  617;  Hoffman  v.  Beecher,  12  Mont. 
489,  31  Pac.  92,  17  Morr.  Min.  Rep.  503;  CuUacott  v.  Cash  G.  S.  M. 
Co.,'  8  Colo.  179,  6  Pac.  211,  214,  15  Morr.  Min.  Rep.  392;  McEvoy  v. 
Hyman,  25  Fed.  596,  599,  15  Morr.  Min.  Rep.  397;  Smith  v.  Newell, 
S6  Fed.  56,  58;  Meydenbauer  v.  Stevens,  78  Fed.  787,  792,  15  Morr. 
Min.  Rep.  578;  TreadweU  v.  Marrs,  9  Ariz.  333,  83  Pac.  350,  355; 
Upton  V.  Santa  Rita  M.  Co.,  14  N.  M.  96,  89  Pae.  275,  281;  Walton  v. 
Wild  Goose  M.  &  T.  Co.,  123  Fed.  209,  217,  60  C.  C.  A.  155,  22  Morr. 
Min.  Rep.  688;  Gibson  v.  Hjul,  32  Nev.  360,  108  Pac.  759,  762;  Car- 
doner  v.  Stanley  Cons.  M.  &  M.  Co.,  193  F&d.  517  j  Duncan  v.  Eagle 


905    "natural  objects" — "permanent  monuments."  §383 

is  the  rule  prescribed  by  congressional  law  for  constru- 
ing mineral  patents."  This  rule,  however,  is  not  in- 
flexible. It  yields  whenever,  taking  all  the  particulars 
of  the  instrument  together,  it  would  be  absurd  to  apply 
it.'« 

The  general  rule  applicable  to  patents,  deeds,  and 
other  instruments  of  conveyance,  that  where  a  monu- 
ment is  referred  to  in  a  descriptive  call,  and  it  has  been 
obliterated  or  destroyed,  parol  evidence  may  be  intro- 
duced to  show  where  it  was  actually  located  in  the 
field,"  does  not,  it  seems,  apply  to  certificates  of  loca- 
tion. As  heretofore  indicated,  in  order  to  invoke  the 
rule  that  courses  and  distance  yield  to  monuments, 
these  monuments  must  be  actually  existing,  and  parol 
evidence  is  inadmissible  to  point  out  where  they  were 
originally  placed. ^^  The  reason  for  this  rule  has  been 
fully  explained  in  a  preceding  section." 

§  383.  "Natural  objects"  and  "permanent  monu- 
ments."— The  words  "natural  objects"  and  "perma- 
nent monuments"  are  general  terms,  susceptible  of 
different  shades  of  meaning,  depending  largely  upon 
their  application.    What  might  be  regarded  as  a  per- 

Rock  G.  M.  &  E.  Co.,  48  Colo.  569,  139  Am.  St.  Eep.  288,  111  Pac. 
588,  593. 

25  Act  of  April  28,  1904;  33  Stats,  at  Large,  545;  Comp.  Stats. 
(Supp.  1911),  p.  611,  10  Fed.  Stats.  Ann.  235;  par.  147,  Grenl.  Min.  E«gu- 
lations,  as  amended,  33  L.  D.  183,  187 — see  appendix.  The  reasons 
impelling  congress  to  pass  this  act  are  fully  explained,  post,  §  671,  the 
section  dealing  with  the  survey  of  lode  claims. 

26  White  V.  Luning,  93  U.  S.  514,  524,  23  L.  ed.  938;  Upton  v. 
Santa  Eita  M.  Co.,  14  N.  M.  96,  89  Pac.  275,  281. 

2T  Ante,  §  375. 

28  Pollard  V.  Shively,  5  Colo.  309,  318;  Thallmann  v.  Thomas,  102 
Fed.  935;  Christenson  v.  Simmons,  47  Or.  184,  82  Pac.  805,  807;  Lillis 
V.  Urrutia,  9  Cal.  App.  557,  99  Pac.  992,  994;  Ihincan  v.  Eagle  Eock 
G.  M.  &  R.  Co.,  48  Colo.  5G9,  139  Am.  St.  Eep.  258,  111  Pac.  5SS,  592. 

29  Ante,  §  375. 


§  383      THE    LOCATION    CERTIFICATE    AND    ITS    CONTENTS.  906 

manent  monument  for  one  purpose  might  not  be  so  con- 
sidered with  reference  to  a  different  purpose.  The 
same  rule  applies  to  natural  obiects.'"  There  is  no  par- 
ticular necessity  for  drawing  a  distinction  between 
"natural  objects,"  such  as  streams,  rivers,  ponds,  high- 
ways, trees,  and  other  things,  ejusdem  generis,  and 
* '  permanent  monuments, ' '  which  may  imply  an  element 
of  artificial  construction,  it  being  the  manifest  intent  of 
the  law  that  any  object  of  a  fairly  permanent  character, 
whether  natural  or  artificial,  may,  if  sufficiently  prom- 
inent, serve  for  the  purpose  of  reference  and  identifi- 
cation. 

As  to  whether  a  given  notice  or  certificate  of  location 
contains  such  a  description  of  the  claim  as  located  by 
reference  to  some  natural  object  or  permanent  monu- 
ment as  will  identify  it,  is  a  question  of  fact  to  be  de- 
termined by  the  jury,""  and  parol  evidence  is  admis- 
sible for  the  purpose  of  proving  that  the  thing  named 
in  the  certificate  is,  in  fact,  a  natural  object  or  perma- 
nent monument.''    In  the  absence  of  evidence  for  or 

30  Quimby  v.  Boyd,  8  Colo.  194,  6  Pac.  462. 

31  Eilers  V.  Boatman,  111  U.  S.  350,  357,  4  Sup.  Ct.  Eep.  432,  28 
L.  ed.  454,  15  Morr.  Min.  Eep.  471;  Bramlett  v.  Flick,  23  Mont.  95, 
57  Pac.  869,  871,  20  Morr.  Min.  Eep.  103;  Farmington  G.  M.  Co.  v. 
Ehymney  G.  M.  Co.,  20  Utah,  363,  77  Am.  St.  Eep.  913,  58  Pac.  832, 
833;  Fissure  M.  Co.  v.  Old  Susan  M.  Co.,  22  Utah,  438,  63  Pac.  587, 
588,'  21  Morr.  Min.  Eep.  125;  Gamer  v.  Glenn,  8  Mont.  371,  20  Pac. 
654,  656;  Brady  v.  Husby,  21  Nev.  453,  33  Pac.  801,  803;  Flavin  v. 
Mattingly,  8  Mont.  242,  19  Pac.  384,  385;  Metcalf  v.  Prescott,  10 
Mont.  283,  25  Pac.  1037,  1038,  1  Morr.  Min.  Eep.  137;  Eussell  v. 
Chumasero,  4  Mont.  309,  1  Pac.  713,  714,  15  Morr.  Min.  Eep.  508; 
Bonanza  Consol.  M.  Co.  v.  Golden  Head  M.  Co.,  29  Utah,  159,  80  Pac. 
736,  738;  Slothower  v.  Hunter,  15  Wyo.  189,  88  Pac.  36,  39 ;  Londonderry 
M.  Co.  V.  United  Gold  Mines,  38  Colo.  480,  88  Pac.  455,  457;  Ford  v, 
Campbell,  29  Nev.  578,  92  Pac.  206,  210;  Bismark  Mt.  G.  M.  Co.  v. 
North  Sunbeam  G.  Co.,  14  Idaho,  516,  95  Pac.  14,  17;  Vogel  v.  War- 
ging,  146  Fed.  949,  951,  77  C.  C.  A.  199;  Humphreys  v.  Idaho  Gold 
Mines  Dev.  Co.  (Idaho),  12.0  Pac.  823,  826. 

82  Carter  v.  Bacigalupi,  83  Cal.  187,  23  Pac.  361,  363;  O'DonneU  v. 


907     " NATURAL  OB JECTS " — "PERMANENT  MONUMENTS.  "    §383 

against  the  sufficiency  of  the  reference  in  the  notice,  it 
will  be  presumed  to  be  sufficient  to  identify  the  claim." 

The  following  cases  indicate  the  views  of  the  courts 
as  to  what  are  natural  objects  or  permanent  monu- 
ments:— 

Prominent  posts,  or  stakes,  firmly  planted  in  the 
ground;"  stones,  if  the  proper  size  and  properly 
marked  ;^^  monuments,^®  prospect  holes,"  and  shafts,^* 

Glenn,  8  Mont.  248,  19  Pac.  302,  304;  Flavin  v.  Mattingly,  8  Mont. 
242,  19  Pac.  384,  385;  Metealf  v.  Prescott,  10  Mont.  283,  25  Pac.  1037, 
1038,  1  Morr.  Min.  Kep.  137;  Dillon  v.  Bayliss,  11  Mont.  171,  27  Pac. 
725,  726;  Kelly  v.  Taylor,  23  Cal.  14;  Londonderry  M.  Co.  v.  United 
Gold  Mines  Co.,  38  Colo.  480,  88  Pac.  455,  457;  Prince  of  Wales  Lode, 
2  Copp's  L.  O.  2,  3. 

3S  Brady  v.  Husby,  21  Nev.  453,  33  Pac.  801,  802;  Gleeson  v.  Martin 
White  M.  Co.,  13  Nev.  442;  Hammer  v.  Garfield  M.  &  M.  Co.,  130 
TJ.  S.  291,  299,  9  Sup.  Ct.  Eep.  548,  32  L.  ed.  964,  1€  Morr.  Min.  Rep. 
125;  Bramlett  v.  Flick,  23  Mon\.  95,  57  Pac.  869,  20  Morr.  Min.  Rep. 
103;  Buffalo  Zinc  &  Copper  Co.  v.  Crump,  70  Ark.  525,  91  Am.  St. 
Rep.  87,  69  S.  W.  572,  576,  22  Morr.  Min.  Rep.  276. 

34  Jupiter  M.  Co.  v.  Bodie  Cons.  M.  Co.,  7  Saw.  96,  112,  11  Fed.  666, 
677,  4  Morr.  Min.  Rep.  411;  Russell  v.  Chumasero,  4  Mont.  309,  1  Pac. 
713,  15  Morr.  Min.  Rep.  508;  O'Donnell  v.  Glenn,  8  Mont.  248,  19 
Pac.  302;  Hansen  v.  Fletcher,  10  Utah,  266,  37  Pac.  480,  482;  Bramlett 
V.  Flick,  23  Mont.  95,  57  Pac.  869,  871,  20  Mcrr.  Min.  Rep.  103;  Credo 
M.  &  S.  Co.  v.  Highland  M.  &  M.  Co.,  95  Fed.  911,  914;  Duncan  v. 
Fulton,  15  Colo.  App.  140,  61  Pac.  244,  247,  20  Morr.  Min.  Rep.  522; 
Bonanza  Consol.  M.  Co.  v.  Golden  Head  M.  Co.,  29  Utah,  159,  80  Pac. 
73G,  737;  Bismark  Mt.  G.  M.  Co.  v.  North  Sunbeam  G.  Co.,  14  Idaho, 
516,  95  Pac.  14,  17;  Mcintosh  v.  Price,  121  Fed.  716,  58  C.  C.  A.  136; 
Sturtevant  v.  Vogel,  167  Fed.  448,  453,  93  C.  C.  A.  84. 

35  Russell  v.  Chumasero,  4  Mont.  309,  1  Pac.  713,  714,  15  Morr.  Min. 
Kep.  508;  Gamer  v.  Glenn,  8  Mont.  371,  20  Pac.  654,  657. 

86  Hansen  v.  Fletcher,  10  Utah,  266,  37  Pac.  480,  482;  Talmadge  v. 
St.  John,  129  Cal.  430,  62  Pac.  79,  80;  Credo  M.  Co.  v.  Highland  Co., 
95  Fed.  911,  914. 

37  Hansen  v.  Fletcher,  10  Utah,  266,  37  Pac.  480,  482;  Bismark  Mt. 
G.  M.  Co.  V.  North  Sunbeam  G.  Co.,  14  Idaho,  516,  95  Pac.  14. 

38  Jupiter  M.  Co.  v.  Bodie  Cons.  M.  Co.,  7  Saw.  96,  111,  11  Fed.  665, 
C79,  4  Morr.  Min.  Rep.  411;  North  Noonday  M.  Co.  v.  Orient  M.  Co., 
6  Saw.  299,  312,  1  Fed.  522,  9  Morr.  Min.  Rep.  529;  Bismark  Mt.  G. 
M.  Co.  V.  North  Sunbeam  G.  Co.,  14  Idaho,  516,  95  Pac.  14. 


§  383      THE    LOCATION    CERTIFICATE    AND    ITS    CONTENTS.  908 

a  depot  and  cliff  of  rocks,"  may  be  sufficient  as  perma- 
nent monuments  within  the  meaning  of  the  law.*"  The 
boundar}^  lines  of  well  known  claims  have  uniformly 
been  held  to  be  such,"  whether  patented  or  not.*'^ 

Where  it  is  shown  that  under  the  system  of  locating 
placer  claims  in  Alaska  the  one  first  discovered  on  a 
gulch  is  generally  called  "discovery  claim"  and  other 
claims  are  numbered  from  such  claim  up  or  down  the 
gulch  or  stream,  and  that  it  is  customary  to  give  to 
side  or  bench  claims  the  same  numbers  as  those  upon 
the  creek  with  the  addition  of  a  letter  of  the  alphabet 

39  Farmington  Co.  v.  Ehymney  Co.,  20  Utah,  363,  77  Am.  St.  Rep. 
913,  58  Pac.  832,  833. 

*o  Meydenbauer  v.  Stevens,  78  Fed.  787,  791,  18  Morr.  Min.  Eep. 
578. 

41  Upton  V.  Larkin,  7  Mont.  449,  17  Pac.  728,  730,  15  Morr.  Min. 
Eep.  404;  Eussell  v.  Chumasero,  4  Mont.  309,  1  Pac.  713,  714,  15  Morr. 
Min.  Eep.  508;  Hammer  v.  Garfield  M.  &  M.  Co.,  130  U.  S.  291,  299,  9 
Siup.  Ct.  Eep.  548,  32  L,  ed.  964,  16  Morr.  Min.  Eep.  125;  Metcalf  v. 
Prescott,  10  Mont.  283,  25  Pac.  1037,  1038,  1  Morr.  Min.  Eep.  137; 
Book  V.  Justice  M.  Co.,  58  Fed.  106,  112,  17  Morr.  Min.  Eep.  617; 
Southern  Cross  M.  Co.  v.  Europa  M.  Co.,  15  Nev.  383;  Gamer  v. 
Glenn,  8  Mont.  451,  20  Pac.  654,  658;  Live  Yankee  Co.  v.  Oregon  Co., 
7  Cal.  41;  Duncan  v.  Fulton,  15  Colo.  App.  140,  61  Pac.  244,  247,  20 
Morr.  Min.  Eep.  522;  Carlin  v.  Freeman,  19  Colo.  App.  334,  75  Pac.  26, 
27;  Slothower  v.  Hunter,  15  Wyo.  189,  88  Pac.  36,  39;  Flynn  Group  M. 
Co.  V.  Murphy,  18  Idaho,  266,  138  Am.  St.  Eep.  201,  109  Pac.  851,  854, 
1  Water  &  Min.  Cas.  619;  Eiste  v.  Morton,  20  Mont.  139,  49  Pac.  656, 
657;  Smith  v.  Newell,  86  Fed.  56,  57;  Wilson  v.  Triumph  Cons.  M. 
Co.,  19  Utah,  66,  75  Am.  St.  Eep.  718,  56  Pac.  300,  303;  Kinney  v. 
Fleming,  6  Ariz.  263,  56  Pac.  723,  724,  20  Morr.  Min.  Eep.  13;  Morri- 
son V.  Eegan,  8  Idaho,  291,  67  Pac.  955,  958,  22  Morr.  Min.  Eep.  69; 
McCann  v.  McMillan,  129  Cal.  350,  62  Pac.  31,  33,  21  Morr.  Min.  Rep. 
6.  Contra:  Baxter  Mt.  G.  M.  Co.  v.  Patterson,  3  N.  M.  179,  3  Pac. 
741,  743.  See  Gilpin  etc.  Co.  v.  Drake,  8  Colo.  586,  9  Pac.  787,  789 
(overruled  by  Duncan  v,  Fulton,  15  Colo.  App.  140,  61  Pac.  244,  247, 
20  Morr.  Min.  Eep.  522).  And  see  Brown  v.  Levan,  4  Idaho,  794,  46 
Pac.  661  (explained  in  Morrison  v.  Eegan,  8  Idaho,  291,  67  Pac.  9515, 
22  Morr.  Min.  Eep.  69). 

42  Londonderry  M.  Co.  v.  United  Gold  Mines  Co.,  38  Colo.  480,  88 
Pac.  455, 


909     ' '  NATUB.\X,  OBJECTS ' ' — ' '  PERMANENT  MONUMENTS.  * '    §  383 

as  A,  B,  C,  etc.,  to  designate  the  tiers  of  claims  back 
from  the  creek  claims,  a  recorded  notice  of  a  claim  in 
such  locality  designating  it  as  "13A  below  discovery 
on  Clearj^  creek"  is  sufficient,  the  claim  being  marked 
on  the  ground.*' 

It  has  been  held  that  if  a  notice  refers  to  a  mining 
claim,  there  is  a  presumption  that  such  claim  exists  ** 
and  that  it  is  well  known."  A  tree  is  a  fixed  natural 
object,  and  when  marked  artificially  or  naturally  there 
is  less  room  to  question  its  sufficiency  than  in  the  case 
of  a  shaft.***  A  canyon,*^  mountain  or  any  other  prom- 
inent feature  of  the  landscape  is  a  natural  object." 
The  natural  objects  or  permanent  monuments  referred 
to  are  not  required  to  be  on  the  ground  located, 
although  they  may  be.** 

*3  Smith  V.  Cascaden,  148  Fed.  792,  797,  78  C.  C.  A.  458,  Ross,  J., 
dissenting. 

**  Kinney  v.  Fleming,  6  Ariz.  263,  56  Pac.  723,  724,  20  Morr.  Min. 
Rep.  13;  Slothower  v.  Hunter,  15  Wyo.  189,  88  Pac.  36,  39;  Londonderry 
M.  Co.  V.  United  Gold  Mines  Co.,  38  Colo.  480,  88  Pac.  455,  457;  Mc- 
intosh V.  Price,  121  Fed.  716,  58  C.  C.  A.  136. 

*5  Bramlett  v.  Flick,  23  Mont.  95,  57  Pac.  869,  20  Morr.  Min.  Rep. 
103;  Credo  M.  Co.  v.  Highland  M.  &  M.  Co.,  95  Fed.  911,  914;  Walton 
V.  Wild  Goose  M.  &  T.  Co.,  123  Fed.  209,  217,  60  C.  C.  A.  155,  22  Morr. 
Min.  Rep.  688;  Smith  v.  Cascaden,  148  Fed.  792,  793,  78  C.  C.  A.  458. 

*6  Quimby  v.  Boyd,  8  Colo.  194,  6  Pac.  462,  467. 

47  Brady  v.  Husby,  21  Nev.  453,  33  Pac.  801,  803;  Vogel  v.  Warsing, 
146  Fed.  949,  952,  77  C.  C.  A.  199. 

48  Flavin  v.  Mattingly,  8  Mont.  242,  19  Pac.  384,  385;  Duncan  v. 
Fulton,  15  Colo.  App.  140,  61  Pac.  244,  247,  20  Morr.  Min.  Rep.  522; 
McKinley  Creek  M.  Co.  v.  Alaska  United  M.  Co.,  183  U.  S.  563,  569, 
22  Sup.  Ct.  Rep.  84,  46  L.  ed.  331,  21  Morr.  Min.  Rep.  730.  "Said 
claim  is  situated  two  miles  from  said  town  of  Armagosa"  is  wholly 
insufficient.     Ford  v,  Campbell,  29  Nev.  578,  92  Pac.  206,  208. 

48  North  Noonday  M.  Co.  v.  Orient  M.  Co.,  6  Saw.  299,  1  Fed.  522, 
532,  9  Morr.  Min.  Rep.  529;  Talmadge  v.  St.  John,  129  Cal.  430,  62 
Pac.  79,  80,  21  Morr.  Min.  Rep.  13;  Credo  M.  Co.  v.  Highland  M.  & 
M.  Co.,  95  Fed.  911,  914;  Bismark  Mt.  G.  M.  Co.  v.  North  Sunbeam 
G.  M.  Co.,  14  Idaho,  516,  95  Pac.  14,  17. 


§  384      THE    LOCATION    CERTIFICATE    AND    ITS    CONTENTS.  910 

Where  it  is  shown  that  a  subsequent  locator  had 
actual  notice  of  the  location  and  the  boundaries, 
neither  he  nor  his  grantee  should  be  permitted  to  take 
advantage  of  some  technical  defect  in  the  notice."* 

§  384.  Effect  of  failure  to  comply  with  the  law  as  to 
contents  of  certificate. — It  follows  from  what  we  have 
heretofore  said  that  any  notice  or  certificate  of  location 
which  is  used  as  the  basis  of  the  record  which  fails  to 
reasonably  comply  with  the  requirements  of  the  federal 
law  as  to  the  contents  of  such  record  is  ineffectual  and 
void." 

xls  to  the  omission  of  any  of  the  other  elements  re- 
quired by  state  legislation,  in  some  of  the  states  the  law 
itself  prescribes  the  penalty  by  providing  that  the  fail- 
ure to  insert  any  of  the  requirements  renders  the  certifi- 
cate of  location  void.  This  is  the  rule  in  Colorado," 
Oregon  (which  provides  that  the  location  shall  be 
void),"  North  Dakota,"  South  Dakota,"  and  Wyom- 
ing.'' The  laws  of  Nevada  make  the  record  of  such 
certificate  void,"  destroying  its  value   as   evidence." 

50  Bismark  Mt.  G.  M.  Co.  v.  North  Sunbeam  G.  M.  Co.,  14  Idaho, 
516,  95  Pac.  14,  17;  Flynn  Group  M.  Co.  v.  Murphy,  18  Idaho,  266,  138 
Am.  St.  Rep.  201,  109  Pac.  851,  854,  1  Water  &  Min.  Cas.  619. 

61  Deeney  v.  Mineral  Creek  M.  Co.,  11  N.  M.  279,  67  Pac.  724,  22 
Morr.  Min.  Rep.  47;  Purdum  v.  Laddin,  23  Mont.  387,  59  Pac.  153. 
See  Brown  v.  Levan,  4  Idaho,  794,  46  Pac.  661,  and  Clearwater  Ry. 
Co.  V.  San  Garde,  7  Idaho,  106,  61  Pac.  137,  as  explained  in  Morrison 
V.  Regan,  8  Idaho,  291,  67  Pac.  955,  22  Morr.  Min.  Rep.  69. 

62  Rev.  Stats.  1908,  §  4195. 

63  Laws  1898,  p.  18;  Bellinger  &  Cotton's  Code,  §3984;  Lord's  Or. 
Laws,  §  5137. 

64  Kev.  Code  1895,  §  1429;  Rev.  Code  1899,  §  1429;  Rev.  Code  1905, 
§  1803. 

65  Comp.  Laws  18S7,  §2000;  Grantham's  Annot.  Stats.  1899,  §2659; 
Rev.  Pol.  Code  1903,  §  2535. 

66  Comp.  Stats.  1910,  §  3468. 
6T  Rev.  Laws  1912,  §  2424. 

68  Ford  V.  Campbell,  29  Nev.  578,  92  Pac.  206,  209;  Zerres  ▼.  Vanina, 


911  VERIFICATION  OF  CERTIFICATES.  §  385 

The  laws  of  the  other  states  and  territories  are  silout 
upon  the  subject. 

If  the  California-Arizona  rule  applicable  to  local 
regulations  and  customs"  may  be  properly  invoked  in 
the  case  of  statutory  enactments, — that  is,  that  a  for- 
feiture is  not  worked  unless  the  custom  or  local  rule  in 
terms  so  declares,®" — the  provisions  of  the  statutes  in 
the  latter  class  of  states,  exacting  requirements  in  ex- 
cess of  those  made  essential  by  the  federal  law,  are 
merely  directory,  and  their  omission  is  accompanied 
with  no  serious  consequences.  We  do  not  see  why 
such  rule  should  not  be  applicable  alike  to  local  and 
statutory  regulations.  As  to  the  other  states,  where 
legislation  of  the  character  noted  is  found,  it  may  be 
said  that  forfeitures  are  not  favored  by  the  courts,  and 
where  a  location  is  made  in  good  faith  and  all  the  essen- 
tial requirements  are  complied  with,  instances  are  not 
frequent  where  the  miner  is  deprived  of  substantial 
rights  for  failure  to  strictly  comply  with  the  letter  of 
the  law. 

§  385.  Verification  of  certificates. — Three  of  the 
states, — Oregon,"  Idaho  ^^  and  Montana,®^ — require  the 

134  Fed.  610,  618;  Gibson  v.  Hjul,  32  Nev.  360,  108  Pac.  759,  762; 
Wailes  v.  Davies,  164  Fed.  397,  398,  90  C.  C.  A.  385. 

69  Ante,  §  274. 

«o  This  rule  does  not  obtain  in  Montana,  Nevada,  nor  Oregon.  Ante, 
I  274;  Purdum  v.  Laddin,  23  Mont.  387,  59  Pac.  153,  154;  Sissons  >. 
Sommers,  24  Nev.  379,  77  Am.  St.  Rep.  815,  55  Pac.  829,  830;  Sharkey  v. 
Candiani,  48  Or.  112,  85  Pac.  219,  222,  7  L.  R.  A.,  N.  S.,  791,  In 
Yosemite  M.  Co.  v.  Emerson,  208  U.  S.  25,  27,  28  Sup.  Ct.  Rep.  19<5,  52 
L.  ed.  374,  the  court  points  out  the  conflict  of  state  decisions  on  this 
subject  but  declines  to  settle  the  question. 

61  Bellinger  &  Cotton's  Code,  §  3977;  Lord's  Or.  Laws,  §  5130. 

62  Civ.  Code  1903,  §  2564;  Laws  1895,  p.  29,  §  13;  Rev.  Code  1907, 
§  3216. 

63  Rev.  Pol.  Code  1895,  §  3612;  Laws  1901,  p.  140;  Laws  1907,  p. 
18;  Rev.  Code  1907,  §  2284. 


§  389  THE  RECORD.  912 

certificate  of  a  lode  location  to  be  verified  by  tbe  oath 
of  a  locator  or  an  afiidavit  to  be  attached  thereto. 

The  validity  of  the  legislation  was  at  one  time 
doubted."  But  it  is  now  well  settled  that  it  is  a  valid 
exercise  of  power  conferred  upon  the  states  to  supple- 
ment federal  legislation.®^  The  purpose  of  the  law  is  to 
prevent  fraud  by  subjecting  the  locator  to  the  penalty 
of  perjury  if  he  swears  falsely  or  corruptly.®"  The 
verification  is  not  required  to  be  made  upon  the  actual 
personal  knowledge  of  the  locator;"  it  may  be  made  by 
an  agent®*  when  the  statute  is  silent.  There  is  a 
special  provision  to  this  effect  in  the  Montana  law. 


Article  IX.    The  Record. 


§  389.     Time  and  place  of  record. 

§  390.     Effect  of  failure  to  record 

within  the  time  limited. 


§  391.     Proof  of  record. 

§  392.     The  record  as  evidence. 


§  389.  Time  and  place  of  record. — As  heretofore 
frequently  indicated,®®  in  the  absence  of  a  state  law  or 
local  rule  requiring  it,  there  is  no  necessity  for  record- 
ing any  notice  or  certificate  in  connection  with  the  ac- 
quisition of  title  to  public  mineral  lands  by  location. 

«4  Wenner  v.  McNulty,  7  Mont.  30,  37,  14  Pac.  643-645;  Metcalf  v. 
Prescott,  10  Mont.  283,  293,  25  Pac.  1037 ,  1  Morr.  Min.  Eep.  137. 

65  McCowan  v.  Maclay,  16  Mont.  235,  40  Pac.  602;  Berg  v.  Koegel, 
16  Mont.  266,  40  Pac.  605;  Mares  v.  Dillon,  30  Mont.  117,  75  Pac.  963, 
964;  Hickey  v.  Anaconda  Copper  Co.,  33  Mont.  46,  81  Pac.  806,  810; 
Washoe  Copper  M.  Co.  v,  Junila,  43  Mont.  178,  115  Pac.  917,  918,  1 
Water  &  Min.  Cas.  451;  Van  Buren  v.  McKinley,  8  Idaho,  93,  66  Pac. 
936,  938,  21  Morr.  Min.  Rep.  690;  Dunlap  v.  Patterson,  4  Idaho,  473,  95 
Am.  St.  Rep.  140,  42  Pac.  504,  505. 

66  Mares  v.  Dillon,  30  Mont.  117,  75  Pac.  963,  965. 

67  Mares  v.  Dillon,  30  Mont.  117,  75  Pac.  963,  965. 

68  Dunlap  V.  Patterson,  4  Idaho,  473,  95  Am.  St.  Rep.  140,  42  Pac. 
504,  505. 

69  Ante,  §§  273,  328. 


913  TIME    AND    PLACE    OF    RECORD.  §  389 

But  as  observed  in  a  preceding  section,^"  the  popular 
notion  is,  that  notices  of  location  should  be  recorded 
somewhere,  and  although  in  the  absence  of  a  law  or 
rule  so  declaring,  a  failure  to  record  may  not  be  ac- 
companied by  any  loss  of  right,  yet  the  universal  rule 
is  to  file  the  notice  of  location  with  the  county  officer 
charged  by  the  state  or  territorial  laws  with  the  duty 
of  registering  instruments  affecting  title  to  real  estate. 
In  the  absence  of  a  statute  a  county  recorder  cannot  be 
compelled  to  record.  But  if  he  chooses  to  do  so,  he 
does  it  not  as  county  recorder  elected  by  the  people, 
but  as  a  person  selected  by  the  miners  to  do  an  act  not 
provided  for  by  the  recordation  laws  of  the  state.^^ 

Where  the  law  or  regulation  requires  a  record  to  be 
made,  but  does  not  specify  the  time  within  which  it  is 
to  be  effected,  a  reasonable  time  should  be  allowed,  fol- 
lowing the  rule  heretofore  announced  as  to  the  time  of 
perfoiTnance  of  other  acts  of  location."  What  consti- 
tutes a  reasonable  time  depends  upon  the  circum* 
stances  surrounding  each  particular  case,  such  as  the 
distance  from  the  discovered  mine  to  the  place  of  rec- 
ord, and  the  means  of  communication  between  the  two 
points.  For  the  most  part,  the  states  wherein  laws 
exist  requiring  a  record  to  be  made  provide  for  the 
time  within  which  the  notice  or  certificate  is  to  be 
lodged  with  the  recording  officer. 

In  Alaska  notices  must  be  filed  for  record  within 
ninety  days  from  the  date  of  discovery."  California 
allows  thirty  days  from  the  date  of  posting;^*  Colorado, 

70  Ante,  §  273. 

71  San  Bernardino  Co.  v.  Davidson,  112  Cal.  503,  44  Pac.  659.  See 
Kern  County  v.  Lee,  129  Cal.  361,  61  Pac.  1124,  1125. 

72  Ante,  §  339. 

73  Sec.  15,  Act  of  June  6,  1900,  31  Stats,  at  Large,  327;  Sturtevant 
V.  Vogel,  167  Fed.  448,  450,  93  C.  C.  A.  84. 

7*  Civ.  Code,  §  1426b. 
Lindley  on  M. — 58 


§  389  THE  RECORD.  914 

three  montlis  from  date  of  discovery;"  Idaho,  ninety 
days  after  the  location;^®  Montana,  sixty  days  after 
posting;"  Nevada,  ninety  days  after  posting ;^^  New 
Mexico,  within  three  months  after  posting  ;^^  North 
Dakota,  sixty  days  from  date  of  discovery;®"  Oregon, 
sixty  days  after  posting ;^^  South  Dakota,  sixty  days 
from  date  of  discovery;®^  Utah,  thirty  days  from  the 
date  of  posting;*'  Washington,  ninety  days  from  the 
date  of  discovery;"  Wyoming,  sixty  days  from  date  of 
discovery.*' 

Nevada  provides  for  recording  with  the  district  re- 
corder and  the  county  recorder.*® 

In  Utah,  if  there  is  a  mining  district  recorder,  the 
original  and  a  duplicate  must  be  filed  with  him,  and  it 
is  made  his  duty  to  transmit  the  duplicate  to  the  county 
recorder  for  record.  If  there  is  no  mining  district 
recorder,  the  record  must  be  made  directly  with  the 
county  recorder.*^ 

76  Mills'  Annot.  Stats.,  §3150;  Gen.  Stats.  1883,  p.  722;  Eev.  Stats. 
1908,  §  4194. 

T6  Civ.  Code  1901,  §  2559;  Laws  1S95,  p.  27;  Eev.  Code  1907,  §  3209. 

77  Eev.  Pol.  Code  1895,  §  3612;  Laws  1901,  p.  140;  Laws  1907,  p.  18; 
Eev.  Code  1907,  §  2284. 

78  Comp.  Laws  1900,  §  210;  Laws  1907,  p.  420;  Eev.  Laws  1912, 
§  2424. 

79  Comp.  Laws  1884,  p.  754,  §  1566;  Comp.  Laws  1897,  §  2286. 

80  Eev.  Code  1895,  §1428;  Eev.  Code  1899,  §  1428;  Eev.  Code  1905, 
§  1802. 

81  Laws  1901,  p.  141;  Bellinger  &  Cotton's  Code,  §3977;  Lord's  Or. 
Laws,  §  5130. 

82  Comp.  Laws  1887,  §  1999;  Amended  Laws  1899,  p.  146;  Grantham's 
Ann.  Stats.  1899,  §  2658;  Eev.  Pol.  Code  1903,  §  2534;  Laws  1903,  p.  268. 

83  Comp.  Laws  1907,  §  1498;  Laws  1909,  p.  79. 

84  Ballinger's  Supp.  1901-3,  §  3151a;  Eem.  &  Bal.  Code  1909,  §  7358. 

85  Eev.  Stats.  1899,  §  2546;  Comp.  Stats.  1910,  §  3467. 

86  Comp.  Laws  1900,  §  210;  Laws  1907,  p.  420;  Eev.  Laws  1912, 
§  2424. 

87  Laws  1899,  p.  26,  §§  4,  9;  Comp.  Laws  1907,  §§  1498,  1502,  1503; 
Laws  1909,  p.  79;  Ford  v.  Campbell,  29  Nev.  578,  92  Pac.  206,  208. 


915     EFFECT  OF  FAILURE  TO  RECORD  IN  TIME  LIMITED,   §  390 

Washington  also  has  provisions  for  organization  of 
mining  districts  and  for  recording  with  district  record- 
ers as  well  as  the  county  auditor.^^ 

In  California,  it  was  customary,  before  the  passage 
of  the  act  of  March,  1897,  to  record  in  the  county  re- 
corder's office,  as  well  as  with  the  district  recorder,  if 
there  was  one.  In  the  absence  of  a  written  district 
rule,  a  custom  as  to  place  of  record  might  be  shown. 
But  such  custom,  to  be  binding,  ought  to  be  so  well 
known,  understood,  and  recognized  in  the  district,  that 
locators  should  have  no  reasonable  ground  for  doubt 
as  to  what  was  required  as  to  place  of  record.®' 

In  1897  an  act  was  passed,  however,  regulating  the 
subject  of  recording  and  prohibiting  district  records. 
The  act  has  been  repealed,®"  but  there  is  now  in  force 
a  general  law  providing  for  the  manner  in  which  loca- 
tions are  to  be  made  superseding  all  prior  legislation.®^ 

Arkansas®^  authorizes  recording  with  the  ex-officio 
recorder  of  the  county,  but  does  not  make  recording  im- 
perative or  fix  any  limit  of  time  in  which  the  record 
shall  be  made. 

§  390.  Effect  of  failure  to  record  within  the  time 
limited. — The  mere  failure  to  record  a  notice,  certifi- 
cate, or  declaratory  statement  within  the  statutory 
time  does  not  render  the  location  of  the  claim  invalid, 
where  there  are  no  intervening  rights  before  the  record 

88  Rem.  &  Bal.  Code  1909,  §§  7355,  7358. 

89  Ante,  §  273. 

80  Stats.  1899,  p.  148;  County  of  Kern  v.  Lee,  129  Cal.  361,  61  Pac. 
1124,  1125;  Stats.  1900,  p.  9.  As  to  the  effect  of  this  repeal  upon  loca- 
tions made  while  the  act  was  in  force,  the  validity  of  which  came  into 
question  subsequent  to  the  repeal,  see  Dv.inell  v.  Dwyer,  145  Cal.  12,  78 
Pac.  247,  248,  7  L.  R.  A.,  N.  S.,  763;  Big  Three  M.  &  M.  Co.  v. 
Hamilton,  157  Cal.  130,  137  Am.  St.  Rep  118,  107  Pac.  301,  307. 

91  Civ.  Code,  §  1426  et  seq. 

»2  Act  of  1899,  p.  113,  §§  1,  2,  3. 


§  390  THE   RECORD.  916 

is  properly  made,  if  there  has  been  full  compliance 
with  the  law  in  all  other  respects.^^ 

This  rule  obtains  in  the  absence  of  a  statute  which 
affixes  a  penalty  for  failure  to  record."* 

It  is  but  the  reiteration  of  a  principle  announced  in 
a  previous  section,"^*  that  the  failure  to  comply  with 
any  of  the  requirements  of  the  law  within  the  time 
limited  may  subject  the  ground  to  relocation ;'«  that  the 
locator  delays  the  performance  of  these  acts  at  his 
peril ;  but  if  he  complies  with  the  law  prior  to  the  ac- 
quisition of  any  right  by  a  subsequent  locator,  no  one 
has  a  right  to  complain.  The  claim  may  not  be  relo- 
cated until  after  the  time  to  record  has  expired;"  and 

93  Preston  v.  Hunter,  67  Fed.  996,  999,  15  C.  C.  A.  148;  Faxon  v. 
Barnard,  4  Fed.  702,  703,  2  McCrary,  44,  9  Morr.  Min.  Rep.  515;  Strepey 
V.  Stark,  7  Colo.  614,  5  Pac.  Ill,  113,  17  Morr.  Min.  Rep.  28;  Craig  v. 
Thompson,  10  Colo.  517,  16  Pac.  24,  27.  See,  also,  Lockhart  v.  Leeds, 
10  N.  M.  568,  63  Pac.  48,  51;  Columbia  Copper  M.  Co.  v.  Duchess  M. 
&  M.  Co.,  13  Wyo.  244,  79  Pac.  385,  386 ;  Slothower  v.  Hunter,  15  Wyo. 
189,  88  Pac.  36,  38;  Zerres  v.  Vanina,  134  Fed.  610,  618;  S.  C,  in 
error,  150  Fed.  564,  80  C.  C.  A.  366 ;  Washington  G.  M.  Co.  v.  O'Laugh- 
lin,  46  Colo.  503,  105  Pac.  1092,  1093;  Bergquist  v.  West  Virginia  & 
Wyoming  Copper  Co.,  18  Wyo.  234,  106  Pac.  673,  677. 

94  Last  Chance  M.  Co.  v.  Bunker  Hill  &  Sullivan  M.  &  C.  Co.,  131 
Fed.  579,  586,  66  C.  C.  A.  299;  certiorari  denied,  200  U.  S.  617,  26 
Sup.  Ct.  Rep.  754,  50  L.  ed.  622;  Sturtevant  v.  Vogel,  167  Fed.  448, 
93  C.  C.  A.  84. 

95  Ante,  §  330. 

96  Lockhart  v.  Wills,  9  N.  M.  344,  54  Pac.  336,  19  Morr.  Min.  Rep. 
497. 

97  Lockhart  v.  Leeds,  10  N.  M.  568,  63  Pac.  48,  51;  S.  C,  sub  nom. 
Lockhart  v.  Johnson,  181  U.  S.  518,  21  Sup.  Ct.  Rep.  665,  45  L.  ed. 
979;  Lockhart  v.  Leeds,  195  U.  S.  427,  25  Sup.  Ct.  Rep.  76,  49  L.  ed. 
263.  See,  also,  Belk  v.  Meagher,  104  U.  S.  279,  282,  26  L.  ed.  735; 
Dwinnell  v.  Dyer,  145  Cal.  17,  78  Pac.  247,  250,  7  L.  R.  A.,  N.  S.,  763; 
Green  v.  Gavin,  10  Cal.  App.  330,  101  Pac.  931,  933;  Nash  v.  McNamara, 
30  Nev.  114,  133  Am.  St.  Rep.  694,  93  Pac.  405,  406,  16  L.  R.  A.,  N,  S., 
168;  Farrell  v.  Lockhart,  210  U.  S.  142,  147,  28  Sup.  Ct.  Rep.  681,  52 
L.  ed.  904,  16  L.  R.  A.,  N.  S.,  162;  Last  Chance  M,  Co.  v.  Bunker  Hill 
&  Sullivan  M.  &  C.  Co.,  131  Fed.  529,  585,  586,  66  C.  C.  A.  299. 


917  EFFECT  OF  FAILURE  TO  RECORD  IN  TIME  LIMITED.        §  390 

if  the  first  locator  does  all  the  other  acts  with  intent  to 
locate,  but  fails  to  record  within  the  time  limited,  he 
gets  a  good  title,  notwithstanding  a  subsequent  locator 
l^erforms  all  the  acts  of  location,  including  recording, 
prior  to  the  time  in  which  the  first  locator  should  have 
recorded. ^^ 

In  the  state  of  Nevada  a  much  broader  rule  obtains. 
It  is  there  held  that  the  provision  in  the  statute  as  to 
time  within  which  a  notice  is  to  be  recorded  is  merely- 
directory,  and  that  a  failure  to  record  does  not  render 
the  ground  subject  to  location  but  merely  shifts  the 
burden  of  proof.^^*  A  record  made  after  the  lapse  of 
the  time  fixed  and  after  relocation  has  been  upheld  and 
the  relocation  determined  to  be  void.*' 

This  rule  is  in  force  in  Alaska."" 

The  acts  when  completed  will  relate  back  to  the  in- 
ception of  the  right.  If  the  certificate  is  deposited 
with  the  recorder  to  be  recorded,  that  is  sufficient. 
His  failure  to  record  will  not  injure  the  locator.' 

Where  the  requirement  as  to  recording  is  fixed  by 
local  rule,  the  failure  to  record,  in  our  opinion,  will  not 
work  forfeiture  unless  the  rule  itself  so  provides. 

This  is  the  view  adopted  by  the  supreme  courts  of 
California  and  Arizona,  and,  as  heretofore  observed,  is 

98  Bramlett  v.  Flick,  23  Mont.  95,  57  Pac.  869,  20  Morr.  Min.  Eep. 
103;  Last  Chance  M.  Co.  v.  Bunker  Hill  &  Sullivan  M.  &  C.  Co.,  131 
Fed.  579,  585,  586,  66  C.  C.  A.  299;  Big  Three  M.  &  M.  Co.  v.  Hamilton, 
157  Cal.  130,  137  Am.  St.  Rep.  118,  107  Pac.  301,  304.  See,  also,  Shep- 
ard  V.  Murphy,  26  Colo.  350,  58  Pac.  588. 

98a  Indiana-Nevada  M.  Co.  v.  Gold  Hills  M.  &  M.  Co.  (Nev.,  Oct.  7, 
1912),  126  Pac.  965,  967. 

99  Zerres  v.  Vanina,  134  Fed.  610,  617;  Wailes  v.  Davies,  158  Fed. 
667;  S.  C,  on  appeal,  164  Fed.  397,  90  C.  C.  A.  385;  Ford  v.  Campbell, 
29  Nev.  578,  92  Pac.  206,  209. 

100  Sturtevant  v.  Vogel,  167  Fed.  448,  451,  452,  93  C.  C.  A.  84. 
1  Shepard  v.  Murphy,  26  Colo,  350,  58  Pac.  588. 


§§391,392  ,  THE  RECORD.  918 

the  rule  followed  by  the  federal  courts  with  regard  to 
Alaska.^ 

§  391.  Proof  of  record. — Where  a  state  law  or  local 
rule  requires  the  certificate  to  be  recorded  with  a 
county  officer  whose  duties  are  defined  by  statute,  such 
as  recorder,  clerk,  or  register  of  deeds,  the  record  will 
prove  itself,  and,  as  a  rule,  certified  copies  thereof  are 
admissible  in  evidence  with  like  effect  as  the  originaL 
But  in  case  of  records  in  the  mining  district,  the  rule  is 
different.  Such  records  do  not  prove  themselves. 
They  must  be  produced  by  the  proper  officer,  whose 
official  character  must  be  shown,  and  the  authenticity 
of  such  records  must  be  established.^  Certified  copies 
of  such  records  cannot  be  admitted  in  evidence,  unless 
it  be  first  shown  that  their  custodian  was  empowered 
under  the  local  rules  to  give  and  authenticate  such 
copies.* 

§  392.  The  record  as  evidence. — Constructive  notice 
by  recording  is  wholly  a  creature  of  the  statute.  A 
record  not  provided  for  by  statute  or  recognized  by  law 
gives  no  notice.  Therefore,  before  a  record  of  a  min- 
ing location  can  be  introduced  in  evidence  for  any  pur- 
pose, it  must  appear  that  it  is  authorized  by  law;  other- 
wise, it  is  irrelevant  and  inadmissible.* 

It  is  possible  that  the  posted  and  recorded  notices  for 
which  there  is  no  express  legal  sanction  may  possess 

2  Sturtevant  v.  Vogel,  167  Fed.  448,  453,  93  C.  C.  A.  84. 
8  Roberts  v.  Wilson,  1  Utah,  292. 

4  Harvey  v.  Ryan,  42  Cal.  626;  Roberts  v.  Wilson,  1  Utah,  292;  ante^ 
§  272.     See,  also,  Attwood  v.  Fricot,  17  Cal.  37,  76  Am.  Dec.  567. 

5  Moxon  V.  Wilkinson,  2  Mont.  421;  Golden  Fleece  M.  Co.  v.  Cabl© 
Cons.  M.  Co.,  12  Nev.  312;  Chamberlain  v.  Bell,  7  Cal.  292,  68  Am.  Dec. 
260;  Mesick  v  Sunderland,  6  Cal.  298,  315;  Daggett  v.  Yreka  M.  &  M. 
Co.,  149  Cal.  357,  86  Pac.  968,  969 ;  Mutchmor  v.  McCarty,  149  Cal.  603, 
87  Pac.  85,  86;  1  Wharton  on  Evidence,  3d  ed.,  §  643. 


919  THE  RECORD  AS  EVIDENCE.  §  392 

evidentiary  quality  and  be  permissible  of  introduction. 
They  may  be  given  no  definite  legal  effect,  and  are  of  no 
value  except  as  acts  in  pais  to  be  considered  in  connec- 
tion with  well-known  customs  and  practices  of  mining 
prospectors  as  an  item  of  evidence  upon  the  question 
of  compliance  with  the  imperative  behests  of  the  min- 
ing law  with  respect  especially  to  the  marking  of  the 
surface  location  so  that  its  boundaries  can  be  readily 
traced/ 

Where  such  record  is  authorized,  it  is  prima  facie 
evidence  only  of  such  facts  as  are  required  by  law  to  be 
stated  therein,^  provided  they  are  sufficiently  stated.* 
A  record  of  a  certificate  of  a  location  which  recites  the 
citizenship  of  locators,**  the  fact  of  discovery,  and  the 
fact  that  the  location  had  been  marked  upon  the  ground 
so  that  the  boundaries  could  be  readily  traced,®  is  not 
evidence  of  any  of  these  facts'"  in  any  of  the  states,  for 

6  Daggett  V.  Yreka  M.  &  M.  Co.,  149  Cal.  357,  86  Pac.  968,  969 ;  Wal- 
ton V.  Wild  Goose,  M.  &  T.  Ck).,  123  Fed.  209,  214,  60  C.  C.  A.  155,  22 
Morr.  Min.  Rep.  688. 

7  2  Jones  on  Evidence,  §  521;  Fox  v.  Myers,  29  Nev.  169,  86  Pac.  793, 
797;  Bismark  Mt.  G.  M.  Co.  v.  North  Sunbeam  G.  Co.,  14  Idaho,  516,  95 
Pac.  14,  16. 

8  Strepey  v.  Stark,  7  Colo.  614,  5  Pac.  Ill,  17  Morr.  Min.  Rep.  28; 
Jantzen  v.  Arizona  C.  Co.,  3  Ariz.  6,  20  Pac.  93,  94;  Bismark  Mt.  G.  M. 
Co.  V.  North  Sunbeam  G.  Co.,  14  Idaho,  516,  95  Pac.  14,  16. 

•a  In  Dean  v.  Omaha- Wyoming  Oil  Co.  (Wyo.,  Jan.  7,  1913),  128 
Pac.  881,  885,  the  court  said  that  the  recital  in  the  certificate  to  the 
effect  that  the  locators  were  citizens,  coupled  with  other  facts,  might 
raise  a  presumption  of  such  citizenship. 

9  An  exception  to  this  is  found  in  the  Montana  statute,  which  gives 
the  locator  the  option  of  describing  his  markings  in  his  recorded  notice 
and  making  the  certificate  prima  facie  evidence  of  all  facts  properly 
recited  in  the  notice.     Rev.  Code  1907,  §  2284. 

10  Flick  V.  Gold  Hill  &  L.  M.  Co.,  8  Mont.  298,  20  Pac.  807,  808 ;  Dag- 
gett V.  Yreka  M.  &  M.  Co.,  149  Cal.  357,  86  Pac.  968,  969;  Mutchmor 
V.  McCarty,  149  Cal.  603,  87  Pac.  85,  86.  In  McCleary  v.  Broaddus,  14 
Cal.  App.  60,  111  Pac.  125,  127,  the  California  district  court  of  appeals 
said  arguendo:  "Ordinarily  ....  the  notice  is  evidence  of  an  original 
discovery."     We  think  this  dictum  against  the  weight  of  authority. 


§  392  THE   RECORD.  920 

the  simple  reason  that  no  such  facts  are  required  to  be 
stated  in  any  of  the  statutory  notices." 

Where  the  right  of  possession  is  founded  upon  an 
alleged  compliance  with  the  law  relating  to  a  valid 
location,  all  the  necessary  steps,  aside  from  the  making 
and  recording  of  the  location  certificate,  must,  when 
contested,  be  established  by  proof  outside  of  such  cer- 
tificate." The  record  of  the  certificate  is  proof  itself 
of  its  own  performance  as  one  of  such  steps,  and  in 
regular  order,  generally  speaking,  the  last  step  in  per- 
fecting the  location.^^ 

While  many  of  the  states  require  the  date  of  the  dis- 
covery to  be  stated  in  the  recorded  certificate,  this 
would  not  be  evidence  of  the  fact  of  discovery.^*  A 
discovery  once  proved,  such  a  record  would,  prima 
facie,  fix  the  date.  Discovery  is  the  most  important  of 
all  the  acts  required  in  the  proceedings  culminating  in 
a  perfected  location.  But  it  is  not  a  matter  of  record, 
but  in  pais,  and  if  controverted  must  be  proved  inde- 
pendently of  the  recital  in  the  certificate."  It  is  the 
foundation  of  the  right  without  which  all  other  acts 
are  idle  and  superfluous.  With  the  exception  of  three 
states   (Idaho,  Montana  and  Oregon),  the  certificate 

11  Magruder  v.  Oregon  and  California  E.  R.  Co.,  28  L.  D.  174. 

12  Zerres  v.  Vanina,  134  Fed.  610,  619. 

13  Strepey  v.  Stark,  7  Colo.  614,  619,  5  Pae.  Ill,  113,  17  Morr.  Min. 
Eep.  28;  Magruder  v.  Oregon  &  California  R.  R.  Co.,  28  L.  D.  174;  Farm- 
ington  G.  M.  Co.  v.  Rhymney  G.  &  C.  Co.,  20  Utah,  363,  77  Am.  St.  Rep. 
913,  58  Pac.  832,  833. 

14  Smith  V.  Newell,  86  Fed.  56;  Fox  v.  Myers,  29  Ner.  169,  86  Pac. 
793;  Magruder  v.  Oregon  &  California  R.  R.  Co.,  28  L.  D.  174;  McQuiddy 
V.  State  of  California,  29  L.  D.  181;  Elda  M.  Co.,  29  L.  D.  279;  Hark- 
rader  v.  Goldstein,  31  L.  D.  87;  Round  Mountain  M.  Co.  v.  Round 
Mountain  Sphinx  M.  Co.  (Nev.,  Jan.  4,  1913),  129  Pac.  308,  311. 

15  Creede  &  Cripple  Creek  M.  &  M.  Co.  v.  Uinta  T.  M.  &  T.  Co.,  196 
U.  S.  337,  352,  25  Sup.  Ct.  Rep.  266,  49  L,  ed.  501. 


921  THE  RECORD  AS  EVIDENCE.  §  392 

is  executed  with  no  solemnity.  It  is  neither  acknowl- 
edged nor  sworn  to.  It  is  a  mere  ex  parte,  self-serving 
declaration  on  his  own  behalf  of  the  party  most  inter- 
ested.'* The  same  may  be  said  of  marking  the  bound- 
aries." 

It  is  quite  true  that  when  a  certificate  contains  a 
description  of  the  claim  with  reference  to  a  natural 
object  or  permanent  monument,  the  recorded  notice  to 
this  extent  may  be  prima  facie  evidence  of  its  own  suffi- 
ciency, for  the  reason  that  the  statute  requires  such 
description  to  be  inserted  in  the  certificate.'^ 

The  real  purpose  of  the  record  is  to  operate  as  con- 
structive notice  of  the  fact  of  an  asserted  claim  and  its 
extent.'®  When  the  locator's  right  is  challenged,  he 
should  be  compelled  to  establish  by  proof  outside  of  the 
certificate  all  the  essential  facts,  without  the  existence 
of  which  the  certificate  possesses  no  potential  validity.^" 
These  facts  once  proved,  the  recorded  certificate  may  be 
considered  as  prima  facie  evidence  of  such  other  facts 

16  Judge  Phillips,  in  his  charge  to  the  jury  in  Cheesman  v.  Shreeve, 
40  Fed.  787,  791,  17  Morr.  Min.  Kep.  260,  said  that  certificates  of  loca- 
tion are  presumptive  evidence  of  discovery.  But  in  this  case,  many  years 
elapsed  between  the  original  location  and  the  litigation,  and  the  fact  of 
discovery  vras  supported  by  the  testimony  of  the  parties.  Under  these 
circumstances  the  judge  held  that  every  reasonable  presumption  should  be 
indulged  in  favor  of  the  integrity  of  the  location.  The  reasoning,  -while 
persuasive  so  far  as  this  case  is  concerned,  does  not  militate  against  the 
views  announced  in  the  text. 

17  Creede  &  Cripple  Creek  M.  &  M.  Co.  v.  Uinta  T,  M.  &  T.  Co.,  196 
U.  S.  337,  352,  25  Sup.  Ct.  Rep.  266,  49  L.  ed.  501. 

18  See  Kinney  v.  Fleming,  6  Ariz.  263,  56  Pac.  723,  20  Morr.  Min. 
Eep.  13;  Providence  G.  M.  Co.  v.  Burke,  6  Ariz.  323,  57  Pac.  641,  19 
Morr.  Min.  Rep.  625. 

18  Meydenbauer  v.  Stevens,  78  Fed.  787,  792,  18  Morr.  Min.  Rep.  578. 

20  Daggett  v.  Yreka  M.  &  M.  Co.,  149  Cal.  357,  86  Pac.  968,  969; 
Mutchmor  v.  McCarty,  149  Cal.  603,  87  Pac.  85,  86;  Uinta  T.  M.  Co.  v. 
Ajax  G.  M.  Co.,  141  Fed.  563,  565;  Creede  &  Cripple  Creek  M.  &  M.  Co. 
V.  Uinta  T.  M.  &  T.  Co.,  196  U.  S.  337,  354,  25  Sup.  Ct.  Rep.  266,  49 
L.  ed.  501. 


§  396      CHANGE  OF  BOUNDARIES,  AMENDED  CERTIFICATES.  922 

as  are  required  to  be  stated  therein,^^  which  is,  of 
course,  subject  to  contradiction." 


Aeticle  X.   Change  of  Boundaries  and  Amended 
OR  Additional  Location  Certificates. 


§  396.  Circumstances  justifying 
change  of  boundaries. 

§  397.  Privilege  of  changing 
boundaries  exists  in  the 
absence    of    intervening 


rights,    independent    of 
state  legislation. 
398.     Objects   and   functions   of 
amended  certificates. 


§  396.  Circumstances  justifying  change  of  bounda- 
ries.— The  difficulties  surrounding  the  locator  in  deter- 
mining the  precise  position  of  his  discovered  vein  in  the 
earth,  the  probable  course  of  its  apex,  and  in  many- 
instances  its  width,  frequently  render  it  impossible  for 
him  to  so  mark  his  boundaries  within  the  time  allowed 
by  law  for  that  purpose  as  to  entitle  him  to  the  full 
measure  of  property  rights  which  the  law  permits  him 
to  acquire  as  the  reward  for  his  discovery.  It  fre- 
quently happens  that  the  limited  extent  of  surface 
exploration  possible  within  the  periods  allowed  him 
does  not  develop  the  true  conditions.  His  markings, 
therefore,  are  frequently  based  on  erroneous  supposi- 
tions and  wrong  theories."  While  as  against  subse- 
quent locators  he  may  be  permitted  to  hold  possession 
of  his  location  made  on  such  erroneous  suppositions,^* 
his  rights  may  be  curtailed  unless  rectification  is  made 
prior  to  intervening  claims.    While  the  government  is 

21  Porter  v.  Tonopah  North  Star  T.  &  D.  Co.,  133  Fed.  756,  763; 
affirmed  on  appeal,  146  Fed.  385,  76  C.  C.  A.  657. 

22  Zerres  v.  Vanina,  134  Fed.  610,  619. 

23  See  Daggett  v.  Yreka  M.  &  M.  Co.,  149  Cal.  357,  86  Pac.  968,  971. 
For  illustration  of  cases  where  the  locator  mistook  the  course  of  his  vein 
and  located  across  instead  of  along  it,  see  post,  §§  586,  587,  588. 

24  Harper  v.  HUl,  159  Cal.  250,  113  Pac.  162,  165,  1  Water  &  Min.  Cas. 
585. 


'923     CIRCUMSTANCES  JUSTIFTINQ  CHANGE  OF  BOUNDARIES.    §  396 

not  concerned  with  the  particular  individual  who  is  the 
recipient  of  its  bounty,  and  it  makes  but  little  difference 
to  it  who  discovers  and  develops  its  mineral  resources, 
its  policy  is  to  encourage  the  search  for,  and  the  open- 
ing of,  mines,  and  this  policy  is  best  subserved  by  per- 
mitting the  discoverer  to  rectify  and  readjust  his  lines 
whenever  he  may  do  so  without  impairing  the  interven- 
ing rights  of  others.^^ 

While  the  locator  marks  his  boundaries  in  every  in- 
stance at  his  peril,  there  is  no  reason  why  he  should  be 
■compelled  to  abide  by  first  impressions,  if  no  one  is 
injured  by  a  subsequent  rectification  of  such  bound- 
aries. 

It  also  frequently  happens  that  at  the  time  a  discov- 
ery is  made,  the  existence  of  contiguous  prior  locations 
prevents  him  from  giving  to  his  surface  that  symmet- 
rical form  which  the  law  contemplates;  or  if  he  makes 
it  in  the  ideal  form,  a  surface  conflict  arises,  rendering 
the  extent  of  his  rights  vague  and  uncertain.  Those 
prior  locations  are  frequently  abandoned,  and  the 
ground  embraced  therein  becomes  subject  to  reappro- 
priation.  As  heretofore  suggested,  when  such  aban- 
donment or  forfeiture  becomes  effectual,  the  conflict 
area  does  not  inure  to  the  advantage  of  the  junior  loca- 
tor.-® But  the  courts  uphold  the  right  of  the  junior 
under  such  circumstances  to  re-form  his  lines  and 
amend  his  location  so  as  to  include  the  abandoned  over- 
lapping surface." 

There  is  no  statute,  law,  rule,  or  regulation  which 
prevents  a  locator  of  a  mining  claim  from  amending 
his  location,  and  including  additional  vacant  ground 

25  Swanson  v.  Kettler,  17  Idaho,  321,  105  Pac.  1059,  1064. 

26  Ante,  §  363;  post,  §  6-15a. 
2T   Id. 


§  39'6      CHANGE  OF  BOUNDARIES,  AMENDED  CERTIFICATES.  924: 

unclaimed  by  other  parties,  or  even  giving  to  the  new 
location  a  different  name.^® 

Where  an  application  for  patent  is  made,  and  a  sur- 
vey for  that  purpose  is  ordered,  the  deputy  mineral 
surveyor  is  controlled  by  the  record  of  the  certificate 
of  location,  where  one  is  required,^®  and  the  markings 
on  the  ground,  the  latter  controlling  where  there  is  a 
variation  between  the  descriptive  calls  of  the  record 
and  the  monuments.^"  While,  for  the  purpose  of  ob- 
taining parallelism,^^  or  casting  off  excess, ^^  the  lines 
may  be  drawn  in,  so  that,  as  finally  surveyed,  the 
boundaries  are  approximately  within  the  limits  of  the 
surface  area  as  originally  claimed,  yet  no  authority  is 
given  to  extend  the  surveyed  boundaries  so  as  to  in- 
clude area  which  at  the  time  of  the  survey  is  not  within 
the  ground  actually  claimed,  or  found  to  be,  at  least, 
approximately  within  the  lines  connecting  the  monu- 
ments as  marked,  prior  to  the  order  for  survey. 

It  is  therefore  frequently  found  necessary  to  change 
boundaries  before  applying  for  an  order  for  survey; 
and  when  so  changed,  an  amended  location  is  made, 
and  an  amended  certificate  is  prepared  and  recorded, 
which,  if  free  from  conflicts  with  those  whose  rights 
have  supervened  since  the  perfection  of  the  original 
location,  is  just  as  valid  as  if  made  in  the  original  in- 
stance.^^ 

28  Shoshone  M.  Co.  v.  Butter,  87  Fed.  801,  806,  31  C.  C.  A.  223,  19 
Morr.  Min.  Kep.  356. 

29  Lincoln  Placer,  7  L.  D.  81;  Rose  Lode  Claims,  22  L.  D.  83;  Com- 
missioner'a  Letter,  1  Copp's  L.  O.  12. 

30  Ante,  §  382. 

31  Doe  V.  Sanger,  83  Cal.  203,  214,  23  Pac.  365,  367,  17  Morr.  Min. 
Eep.  298;  Doe  v.  Waterloo  M.  Co.,  54  Fed.  935,  940;  Tyler  v.  Sweeney, 
54  Fed.  284,  4  C.  C.  A.  329 ;  Last  Chance  M.  Co.  v.  Tyler,  61  Fed.  557, 
9  C.  C.  A.  613;  Philadelphia  M.  Claim  v.  Pride  of  the  West,  3  Copp's 
L.  O.  82. 

32  Credo  M.  &  M.  Co.  v.  Highland  M.  &  M.  Co.,  95  Fed.  911,  916. 

33  Tipton  G.  M.  Co.,  29  L.  D.  718. 


925  CHANGE  OF  BOUNDARIES,  STATE  LEGISLATION.  §  397 

Those  locating  subsequently  to  the  perfection  of  the 
amended  location  are  not  injured,  and  have  no  right  to 
complain/* 

§  397.  Privilege  of  changing  boundaries  exists,  in 
the  absence  of  intervening  rights,  independent  of  state 
legislation. — In  most  of  the  states,  amended  locations 
and  certificates  are  the  subject  of  statutory  regulation. 
This  is  the  case  in  Colorado,"  California,^^  Idaho," 
Arizona,"  Montana,^*  Nevada,"  New  Mexico,*^  North 
Dakota,"  Oregon,"  South  Dakota,"  Washington," 
and  Wyoming." 

The  provisions  in  all  these  states,  with  the  exception 
of  those  in  Arizona,  are  on  parallel  lines  with  those  of 
Colorado,  which  are  as  follows: — 

If,  at  any  time,  the  locator  of  any  mining  claim 
heretofore  or  hereafter  located,  or  his  assigns,  shall 
apprehend  that  his  original  certificate  was  errone- 
ous, defective,  or  that  the  requirements  of  the  law 

84  Gleeson  v.  Martin  White  M.  Co.,  13  Nev.  442;  Bunker  Hill  &  Sul- 
livan M.  &  C.  Co.  V.  Empire  State-Idaho  M.  &  D.  Co.,  134  Fed.  268, 
270;  Empire  State-Idaho  M.  &  D.  Co.  v.  Bunker  Hill  &  Sullivan  M.  & 
C.  Co.,  131  Fed.  591,  604,  66  C.  C.  A.  99;  appeal  dismissed,  200  U.  S. 
613,  26  Sup.  Ct.  Eep.  754,  50  L.  ed.  620;  certiorari  denied,  200  U.  S. 
617,  26  Sup.  Ct.  Rep.  754,  50  L.  ed.  632. 

35  Mills'  Annot.  Stats.,  §  3160;  Eev.  Stats.  1908,  §  4210. 

88  Civ.  Code,  §  1426h. 

87  Laws  1895,  p.  27,  §5;  Civ.  Code  1901,  §2566;  Rev.  Code  1907, 
§  3210. 

38  Rev.  Stats.  1901,  §  3238. 

39  Laws  1901,  p.  56,  §§  1,  2;  Rev.  Code  1907,  §§  2288,  2289. 
*o  Comp.  Laws  1900,  §213;   Rev.  Laws,  1912,  §  2427. 

41  Comp.  Laws  1897,  §  2301. 

42  Rev.  Code  1895,  §  1437;   Id.  1899,  §  1437;  Id.  1905,  §  181L 

43  Laws  1905,  p.  254;  Lord's  Or.  Laws,  §  5140. 

44  Comp.  Laws  Dak.  1887,  §  2008.  Adopted  by  South  Dakota— Laws 
1890,  ch.  cv;  Grantham's  Annot.  Stats.  S.  D.  1899,  §  2667;  Eev.  Pol.  Code 
1903, §  2543. 

45  Laws  1899,  p.  70,  §5;  Rem.  &  Bal.  Codes  1909,  §  7362. 

46  Rev.   Stats.   1899,  §2538;    Comp.   Stats.   1910,  §  3459. 


§  397      CHANGE  OF  BOUNDARIES,  AMENDED  CERTIFICATES.  92& 

had  not  been  complied  with  before  filing,  or  shall  be 
desirous  of  changing  his  surface  boundaries,  or  tak- 
ing in  any  part  of  an  overlapping  claim  which  has 
been  abandoned,  or  in  case  the  original  certificate 
was  made  prior  to  the  passage  of  this  law,  and  he 
shall  be  desirous  of  securing  the  benefits  of  this  act, 
such  locator,  or  his  assigns,  may  file  an  additional 
certificate,  subject  to  the  provisions  of  this  act;  pro- 
vided, that  such  relocation  does  not  interfere  with 
existing  rights  of  othei's  at  the  time  of  such  reloca- 
tion, and  no  such  relocation,  or  other  record  thereof^ 
shall  preclude  the  claimant,  or  claimants,  from  prov- 
ing any  such  title,  or  titles,  as  he,  or  they,  may  have- 
held  under  previous  location. 

In  Arizona  the  section  on  this  subject  is  as  follows : — ■ 
Location  notices  may  be  amended  at  any  time  and 
the  monuments  changed  to  correspond  to  the 
amended  location;  provided,  that  no  change  shall  be 
made  that  will  interfere  with  the  rights  of  others. 

But,  in  the  nature  of  things,  this  right  exists 
throughout  the  mining  regions,  independently  of  statu- 
toiy  regulations.  The  supreme  court  of  California 
held,  at  a  time  when  there  was  no  statute  in  that  state 
on  the  subject,  that  if  locators  have  any  apprehension 
as  to  the  sufficiency  of  their  original  location,  there  is 
no  reason  why  they  should  not  be  permitted  to  modify 
or  amend  it.*'' 

Of  course,  the  alteration  of  boundaries,  by  taking  in 
new  territory  and  filing  amended  certificates  where  the 
antecedent  one  is  absolutely  void,  cannot  be  permitted 
to  the  prejudice  of  intervening  rights.*®     But  with  this 

4T  Thompson  v.  Spray,  72  Cal.  528,  529,  14  Pae.  182,  183;  Daggett 
V.  Yreka  M.  &  M.  Co.,  149  Cal.  357,  86  Pac.  968,  975. 

48  Seymour  v,  Fisher,  16  Colo.  188,  27  Pac.  240;  Fisher  v.  Seymour,. 
23  Colo.  542,  49  Pac.  30;  Omar  v.  Soper,  11  Colo.  380,  7  Am.  St.  Rep. 
246,  18  Pac.  443,  447,  15  Morr.  Min.  Rep.  496;  Hall  v.  Arnott,  80  Cal. 
348,  22  Pac.  200,  203;  Tombstone  Townsite  Cases,  2  Ariz.  272,  15  Pac 


927  AMENDED    CERTIFICATE,   DOCTRINE   OF    RELATION.        §  398 

qualification,  the  right  to  change  boundaries  and  rec- 
tify lines  exists  throughout  the  mining  regions." 

In  dealing  with  this  subject  in  the  future,  we  shall 
assume  the  correctness  of  this  theory,  and,  therefore, 
that  the  decisions  of  the  courts  in  states  where  laws  of 
this  character  exist,  so  far  as  underlying  principles  are 
discussed  therein,  may  be  resorted  to  as  precedents  in 
states  where  legislation  on  the  subject  is  wanting.  We 
think  the  circumstances  set  forth  in  the  preceding  sec- 
tion justify  this  assumption. 

§  398.  Objects  and  functions  of  amended  certificates. 
Where  a  change  of  boundaries  is  sought,  the  acts 
necessary  to  accomplish  the  desired  result  are  specified 
by  statute  in  the  states  enumerated  in  the  preceding 
section.  Where  there  is  no  statute,  in  re-marking  the 
boundaries  and  preparing  and  recording  the  certificate 
the  same  formalities  should  be  obser^^ed  as  in  the  case 
of  an  original  location. 

In  speaking  of  the  objects  and  functions  of  addi- 
tional or  amended  certificates  of  location,  the  supreme 
court  of  Colorado  thus  states  its  views: — 

The  evident  intent  of  the  statute  is,  that  the  addi- 
tional certificate  shall  operate  to  cure  defects  in  the 

26,  27;  Wight  v.  Tabor,  2  L.  D.  738;  Washington  Gold  M.  Co.  v. 
O'Laughlin,  46  Colo.  503,  105  Pac.  1092.  The  same  rule  obtains  when 
the  location  as  originally  made  is  void  for  lack  of  proper  discovery. 
Sullivan  v.  Sharp,  33  Colo.  346,  80  Pac.  1054,  1056. 

49  Frisholm  v.  Fitzgerald,  25  Colo.  290,  53  Pac.  1109;  Duncan  v. 
Fulton,  15  Colo.  App.  140,  61  Pac.  244,  20  Morr.  Min.  Rep.  522;  Morri- 
son V.  Eegan,  8  Idaho,  291,  67  Pac.  956,  22  Morr.  Min.  Rep.  69;  Sandere 
V.  Noble,  22  Mont.  110,  55  Pac.  1037,  19  Morr.  Min.  Rep.  650;  Tonopah 
&  Salt  Lake  M.  Co.  v.  Tonopah  M.  Co.,  125  Fed.  389,  395;  Empire  State- 
Idaho,  M.  &  D.  Co.  V.  Bunker  Hill  &  Sullivan  M.  &  C.  Co.,  131  Fed. 
591,  604,  66  C.  C.  A.  99;  Porter  v.  Tonopah  North  Star  T.  &  D.  Co., 
133  Fed.  756,  763;  Swanson  v.  Kettler,  17  Idaho,  321,  105  Pac.  1059, 
1064;  King  Solomon  Tunnel  etc.  Co.  v.  Mary  Verna  M.  Co.,  22  Colo, 
App.  528,  127  Pac.  129,  132. 


§  39>8      CHANGE  OF  BOUNDARIES,  AMENDED  CERTIFICATES.  928 

original,  and  thereby  to  put  the  locator,  where  no 
other  rights  have  intervened,  in  the  same  position 
that  he  would  have  occupied  if  no  such  defect  had 
occurred.  Such  intent  is  in  accord  with  the  princi- 
ple of  all  curative  provisions  of  law.^° 

And  in  a  later  case  the  same  court  says: — 

It  is  to  the  end  that  the  prospector  may  cure  any 
defects  in  his  location  and  conserve  and  protect  the 
results  of  his  industry  that  the  authority  is  given." 

Such  a  certificate  may  be  used  as  evidence,  although 
the  original  may  be  incomplete  or  imperfect,  upon  the 
theory  that  the  amended  certificate  relates  back  to  a 
right  of  location  accruing  by  virtue  of  the  prerequisite 
discovery  and  an  attempted  compliance  with  the  law."^ 
When  the  original  certificate  of  location  may  be 
deemed  defective,  an  additional  one  may  be  filed  to 
correct  its  defects,  and  both  may  be  put  in  evidence." 

BO  Strepey  v.  Stark,  7  Colo.  614,  620,  5  Pac.  Ill,  115,  17  Morr.  Min. 
Bep.  28;  Sullivan  v.  Sharp,  33  Colo.  346,  80  Pac.  1054;  Butte  Consol. 
M.  Co.  V.  Barker,  35  Mont.  327,  89  Pac.  302,  304,  90  Pac.  177,  distin- 
guishing Healey  v.  Rupp,  37  Colo.  25,  &6  Pac.  1015,  1016;  Milwaukee 
Gold  Extraction  Co.  v.  Gordon,  37  Mont.  209,  95  Pac.  995,  997;  Tonopah 
&  Salt  Lake  M.  Co.  v.  Tonopah  M.  Co.,  125  Fed.  389,  396;  Bergquist 
V.  West  Virginia  &  Wyoming  Copper  Co.,  18  Wyo.  234,  106  Pac.  673, 
678. 

61  Duncan  v.  Fulton,  15  Colo.  App.  140,  61  Pac.  244,  246,  20  Morr. 
Min.  Rep.  522. 

52  McGinnis  v.  Egbert,  8  Colo.  41,  45,  5  Pac.  652,  654,  15  Morr.  Min. 
Eep.  329;  Moyle  v.  Bullene,  7  Colo.  App.  308,  44  Pac.  69;  Becker  v. 
Pugh,  9  Colo.  589,  13  Pac.  906,  907,  15  Morr.  Min.  Rep.  304;  Duncan 
V.  Fulton,  15  Colo.  App.  140,  61  Pac.  244,  20  Morr.  Min.  Rep.  522; 
Strepey  v.  Stark,  7  Colo.  614,  5  Pac.  Ill,  113,  17  Morr.  Min.  Rep.  28; 
Butte  Consol.  M.  Co.  v.  Barker,  35  Mont.  327,  89  Pac.  302,  303,  90  Pac. 
177;  Giberson  v.  Tuolumne  Copper  Co.,  41  Mont.  396,  109  Pac.  974, 
975;  dissenting  opinion,  Frisholm  v.  Fitzgerald,  25  Colo.  290,  53  Pac. 
1109. 

53  Duncan  v.  Fulton,  15  Colo.  App.  140,  61  Pac.  244,  20  Morr.  Min. 
Hep.  522;  Bismark  Mt.  G.  M.  Co.  v.  North  Sunbeam  G.  Co.,  14  Idaho, 
516,   95    Pac.    14,    16;    Milwaukee   Gold   Extraction   Co.   v.   Gordon,   37 


929 


AMENDED    CERTIFICATE,   DOCTRINE   OF    RELATION.        §  398 


A  distinction  is  drawn  between  cases  where  the  orig- 
inal certificate  is  absolutely  void,"  or  where  the 
amended  certificate  seeks  to  appropriate  new  and  addi- 
tional ground,  and  one  where  the  original  is  simply 
defective.  If  in  making  the  amended  location  it  in- 
cluded land  not  in  the  original  location,  and  interfered 
with  existing  rights  as  to  such  land,  the  amended  loca- 
tion would  not  relate  back  to  the  date  of  the  original 
location,  so  far  as  the  recently  included  land  is  con- 
cerned,^" 

The  supreme  court  of  Arizona  expresses  the  opinion 
that  the  word  "void"  used  in  the  statute  should  be 
construed  to  mean  ''voidable."  In  other  words,  a 
notice  failing  to  conform  to  the  statute  and  thus  de- 
clared by  the  law  to  be  void  may,  in  the  absence  of  in- 
tervening rights,  be  made  valid  by  an  amended  loca- 
tion notice;  e.  g.,  a  relocation  of  a  claim  alleged  to  have 
been  abandoned  was  made  and  the  notice  failed  to 
specify  that  it  was  a  relocation  of  abandoned  ground. 
While  the  court  held  the  notice  void,'''  it  also  held  it 
could  be  validated  by  an  amended  notice  in  the  ab- 
sence of  intervening  rights."^ 

Where  the  object  is  simply  to  cure  imperfections  and 
obvious  defects,  and  there  is  no  attempt  to  include  new 

Mont.  209,  95  Pae.  995,  1000;  Tonopah  &  Salt  Lake  M.  Co.  v.  Tonopah 
M.  Co.,  126  Fed.  389,  400;  Giberson  v.  Tuolumne  Copper  Co.,  41  Mont 
396,  109  Pac.  974,  975. 

64  Sullivan  v.  Sharp,  33  Colo.  346,  80  Pac.  1054. 

66  Morrison    v.    Regan,    8    Idaho,    291,    67    Pac.    955,    961,    22    Morr. 
Min.   Rep.   69;   Bismark  Mt.  G.   M.   Co.  v.   North  Sunbeam  G.   M    Co 
14  Idaho,  516,  95  Pac.  14,  16.  ' 

6«  Cunningham  v.  Pirring,  9  Ariz.  288,  80  Pac.  329,  330;  Kinney  v 
Lundy,  11  Ariz.  75,  89  Pac.  496,  497.  See,  also,  Bergquist  v.  West 
Virginia  &  Wyoming  Copper  Co.,  18  Wyo.  234,  106  Pac.  673,  677. 

67  Kinney  v.  Lundy,  11  Ariz.  75,  8©  Pac.  496,  497. 

Lindley  on  M. — &<> 


§  398      CHANGE  OF  BOUNDARIES,  AMENDED  CERTIFICATES.  930 

ground,  the  amended  certificate  will  relate  back  to  the 
original  in  spite  of  intervening  locations.'* 

Everyone  who  is  at  all  familiar  with  mining  loca- 
tions knows  that  in  practice  the  first  record  must 
usually,  if  not  always,  be  imperfect.  Recognizing 
these  difficulties,  it  has  never  been  the  policy  of  the 
law  to  avoid  a  location  for  defects  in  the  record,  but 
rather  to  give  the  locator  an  opportunity  to  correct 
his  record,  whenever  defects  may  be  found  in  it. 
....  This  is  the  function  and  proper  office  of 
amendments:  To  put  the  original  in  as  perfect  con- 
dition as  if  it  had  been  complete  in  the  first  in- 
stance." 

In  other  words,  a  reasonable  latitude  of  amendment 
is  allowed,  of  which  the  locator  cannot  be  deprived 
because  someone  has  attempted  to  relocate  his' 
ground. 

There  is  a  distinction  between  amending  an  orig- 
inal location  by  re-forming  lines  and  rectifying  errors 
based  upon  a  prior  discovery  and  location,  and  the  re- 
location of  abandoned  ground.  The  former,  if  prop- 
erly made,  and  no  other  rights  have  intervened,  takes 
effect,  subject  to  the  qualification  heretofore  stated^  by 
relation,  as  of  the  date  of  the  original;  whereas,  relo- 
cation of  abandoned  ground  becomes  operative  only 

58  McEvoy  V.  Hyman,  25  Fed.  596,  599,  15  Morr.  Min,  Rep.  397; 
Tombstone  Townsite  Cases,  2  Ariz.  27"-,  15  Pac.  26,  27;  Hall  v.  Arnott, 
80  Cal.  348,  22  Pac.  200,  203;  Frisholm  t.  Fitzgerald,  25  Colo.  290,  5S 
Pac.  1109  (dissenting  opinion)  ;  Duncan  v.  Fulton,  15  Colo.  App,  140,  61 
Pac.  244,  246,  20  Morr.  Min.  Rep.  522;  Morrison  v.  Regan,  8  Idaho, 
291,  67  Pac.  955;  Bismark  Mt.  G.  M.  Co.  v.  North  Sunbeam  G.  M.  Co., 
14  Idaho,  516,  95  Pac.  14,  16;  Bergquist  v.  West  Virginia  &  Wyoming 
Copper  Co.,  18  Wyo.  234,  106  Pac.  673,  677. 

59  McEvoy  V.  Hyman,  25  Fed.  596,  600,  15  Morr.  Min.  Rep.  397 ;  Bis- 
mark Mt.  G.  M.  Co.  V.  North  Sunbeam  G.  M.  Co.,  14  Idaho,  516,  95  Pac. 
14,  16;  Tonopah  &  Salt  Lake  M.  Co.  v.  Tonopah  M.  Co.,  125  Fed.  389, 
396.     See,  also,  Craig  v.  Thompson,  10  Colo.  517,  16  Pac.  24. 


931  AMENDED    CERTIFICATE,   DOCTRINE   OF   RELATION.        §  398 

from  the  date  of  its  perfection;'"  and  whether  a  given 
certificate  is  a  mere  amendment  or  a  relocation  of  aban- 
doned ground  will  depend  upon  the  facts  as  they  exist, 
and  not  upon  the  recitals  of  the  certificate.^'  The  sec- 
ond or  amended  notice  is  not  an  abandonment  of  the 
original.*^  An  amended  notice  cannot,  by  the  mere 
omission  to  insert  names  of  the  original  locators,  divest 
the  title  acquired  by  the  original  location,""  unless  done 
with  their  knowledge  and  consent.®" 

Additional  territory  embraced  within  an  amended 
location  made  by  one  cotenant  will  inure  to  the  benefit 
of  all,  on  the  principle  that  the  right  to  change  the 
boundaries  arises  out  of,  and  relates  back  to,  the  orig- 
inal location."* 

60  Cheesman  v.  Shreeve,  40  Fed.  787,  789,  17  Morr.  Min.  E«p.  260; 
Slothower  v.  Hunter,  15  Wyo.  189,  88  Pac.  36,  38;  Bergquist  v.  West 
Virginia  &  Wyoming  Copper  Co.,  18  Wyo.  234,  106  Pac.  673,  678. 

61  Id. 

62  Thompson  v.  Spray,  72  Cal.  528,  14  Pac.  182;  WeiU  v.  Lucerne 
M.  Co.,  11  Nev.  200,  213;  Temescal  Oil  M.  &  D.  Co.  v.  Salcido,  137 
Cal.  211,  69  Pac.  1010;  Empire  State-Idaho  M.  &  D.  Co.  v.  Bunker  Hill 
&  Sullivan  M.  &  C.  Co.,  131  Fed.  591,  604;  Bergquist  v.  West  Virginia 
&  Wyoming  Copper  Co.,  18  Wyo.  234,  106  Pac.  673,  678;  King  Solomon 
etc.  Co.  V.  Mary  Verna  M.  Co.,  22  Colo.  App.  528,  127  Pac.  129,  132. 

63  Thompson  v.  Spray,  72  Cal.  528,  14  Pax;.  182,  183;  Hallack  v. 
Traber,  23  Colo.  14,  46  Pac.  110,  18  Morr.  Min.  Rep.  360;  Stevens  v. 
Grand  Central  M.  Co.,  133  Fed.  28,  30,  67  C.  C.  A.  284;  Lockhart  v. 
Leeds,  195  U.  S.  427,  433,  25  Sup.  Ct.  Rep.  76,  49  L.  ed.  263,  where 
there  was  a  fraudulent  relocation  under  another  name;  Mono  M.  Co.  v. 
Magnolia  E.  &  W.  Co.,  2  Copp's  L.  O.  68 ;  In  re  Teller,  26  L.  D.  484, 
486;  In  re  Auerbach,  29  L.  D.  208. 

64  Morton  v.  Solambo  C.  M.  Co.,  26  Cal.  527;  Gore  v.  McBrayer,  18 
Cal.  583 ;  Moore  v.  Hamerstag,  109  Cal.  122,  125,  41  Pac.  805,  806,  18 
Morr.  Min.  Rep.  256. 

65  Hallack  v.  Traber,  23  Colo.  14,  46  Pac.  110,  18  Morr.  Min.  Rep. 
360.  See  Reagan  v.  McKibben,  11  S.  D.  270,  76  N.  W.  943,  945,  19 
Morr.  Min.  Rep.  556;  Van  Wagenen  v.  Carpenter,  27  Colo.  444,  61  Pac. 
698. 


§  398      CHANGE  OF  BOUNDARIES,  AMENDED  CERTIFICATES.  932 

Where  an  amendment  is  made  to  a  location  which 
embraces  new  ground,  it  is  not  necessary  to  make  a 
new  discovery  in  the  added  area.®® 

Where  the  second,  or  amended,  notice  contains 
names  other  than  those  set  forth  in  the  original,  in  an 
action  against  strangers  this  fact  cannot  be  taken  ad- 
vantage of.  It  may  be  treated  as  an  original  notice  as 
to  the  persons  whose  names  do  not  appear  on  the  first, 
and  as  a  supplemental  or  amended  notice  as  to  those 
whose  names  appear  on  both.®'' 

Any  radical  change  of  the  name  of  a  claim  might  be 
construed  as  an  attempt  to  hide  its  identity,  and  mis- 
lead adverse  claimants  in  patent  proceedings,  or  to 
accomplish  a  fraudulent  purpose  such  as  the  exclusion 
of  a  co-owner;®*  but  the  mere  dropping  of  a  descriptive, 
prefix — as,  for  instance,  naming  a  claim  the  "Tiger" 
instead  of  the  '^ Little  Tiger,"  "Shields"  in  place  of 
"General  Shields,"  or  "Flag"  instead  of  "American 
Flag,"  or  the  addition  of  a  suffix  as  "Annex-Plumber," 
the  name  in  the  original  being  "  Annex  "®^ — where  the 
other  descriptive  portions  of  the  notice  are  regular,  is 
of  no  importance." 

It  is  not  necessary  that  the  purposes  for  which  a  cer- 
tificate is  amended  should  be  specified.    The  filing  of 

66  Tonopah  &  Salt  Lake  M.  Co.  v.  Tonopah  M.  Co.,  125  Fed.  389, 
399.  A  different  rule  would  obtain  in  the  case  of  a  placer  claim  where 
the  original  location  exhausted  the  statutory  limit.  Weed  v.  Snook,  144 
Cal.  439,  77  Pac.  1023,  1025;  Garden  Gulch  Placer,  38  L.  D.  28;  In 
re  Head,  40  L.  D.  135.  See,  also,  Bigelow  v.  Conradt,  159  Fed.  868, 
87  C.  C.  A.  48. 

67  Thompson  v.  Spray,  72  Cal.  528,  529,  14  Pac.  182,  183;  Tonopah 
&  Salt  Lake  M.  Co.  v.  Tonopah  M.  Co.,  125  Fed.  389,  396. 

68  Lockhart  v.  Leeds,  195  U.  S.  427,  434,  25  Sup.  Ct.  Rep.  76,  49 
L.  ed.  263. 

69  Butte  Consol.  Min.  Co.  v.  Barker,  35  Mont.  327,  89  Pac.  302, 
303,  90  Pac.  177. 

70  Seymour  v.  Fisher,  16  Colo.  188,  199,  27  Pac.  240.  See  Fisher  v. 
Seymour,  23  Colo.  542,  49  Pac.  30. 


933 


WHEN   RELOCATION    MAT   BE   MADE. 


§402 


such  certificate,  if  made  under  proper  conditions,  is 
effectual  for  all  the  purposes  enumerated  in  the  stat- 
ute, whether  such  purposes  are  mentioned  in  the  certifi- 
cate or  noV^ 

Where  an  amended  location  is  made  to  cure  defects 
in  original,  covering  the  identical  ground,  the  locator 
may  adopt  stakes  and  monuments  of  the  original  loca- 
tion, and  his  intention  to  do  so  may  be  inferred  from 
the  circumstances/^ 

There  are  certain  factors  involved  in  amending 
placer  locations  which  modify  some  of  the  rules  dis- 
cussed in  this  section.  They  will  be  considered  later 
when  dealing  with  the  subject  of  placers." 


Aeticle  XI.    Relocatioit  of  Forfeited  or 
Abandoned  Claims. 


§  402.  Circumstances  under  which 
relocation  may  be  made. 

§  403.  New  discovery  not  essen- 
tial as  basis  of  reloca- 
tion. 

§  404.  Relocation  admits  the  va- 
lidity of  the  original. 

§  405.  Relocation  by  original  lo- 
cator. 

§  406.  Relocation  by  one  of  sev- 
eral original  locators  in 
hostility  to  the  others. 


§  407.  Relocation  by  agent  or 
others  occupying  con- 
tractual or  fiduciary  re- 
lations with  original 
locator. 

§  408.  Manner  of  perfecting  re- 
locations —  Statutory 
regulations. 

§  409.  Right  of  second  locator  to 
improvements  made  by 
the  fi.rst. 


§  402.  Circumstances  under  which  relocation  may 
be  made. — In  dealing  with  the  subject  of  relocation,  it 
is  not  our  purpose  at  this  time  to  enter  into  a  critical 

71  Johnson  v.  Young,  1&  Colo.  625,  629,  34  Pac.  173. 

72  Bergquist  v.  West  Virginia  &  Wyoming  Copper  Co.,  18  Wyo.  106, 
106  Pac.  673,  677;  Dean  v.  Omaha-Wyoming  Oil  Co.  (Wyo.,  Jan.  7,  1913), 
128  Pac.  881,  884. 

73  Post,  §  459a. 


§  402      RELOCATION   OF  FORFEITED   OR  ABANDONED   CLAIMS.       934 

discussion  of  the  subject  of  abandonment,  forfeiture,  or 
the  preservation  of  the  estate  from  relocation  by  a  re- 
sumption of  work.  The  scope  of  this  article  is  limited 
to  the  manner  in  which  claims  may  be  relocated  after 
the  rights  based  upon  the  original  location  are,  by  rea- 
son of  the  default  of  the  owner  in  fulfilling  the  require- 
ments of  the  law,  subject  to  extinguishment  by  a  new 
entry  and  a  new  location,  or  where  the  claim  owner 
abandons  the  claim,  thus  restoring  it  to  the  public 
domain.^* 

The  circumstances  under  which  the  estate  created  by 
the  perfection  of  a  valid  location  may  be  extinguished 
by  hostile  relocation,  and  the  manner  in  which  such 
estate  may  be  preser^^ed  from  such  relocation  by  the 
delinquent  original  locator,  will  be  fully  explained  in  a. 
succeeding  title.^^ 

For  a  failure  to  perfoiTQ  labor  or  make  improve- 
ments to  the  value  of  one  hundred  dollars  annually, 
computing  the  periods  from  the  first  day  of  January 
next  succeeding  the  date  of  location,  the  federal  law 
provides  that — 

The  claim  or  mine  upon  which  such  failure  occurs 
shall  be  open  to  relocation  in  the  same  manner  as  if 
no  location  of  the  same  had  ever  been  made,  pro- 
vided that  the  original  locators  or  their  heirs, 
assigns,  or  local  representatives,  have  not  resumed 
work  upon  the  claim  after  failure  before  such  loca- 
tion.^® 

It  is  one  of  the  essentials  upon  which  the  right  to  re- 
locate exists  that  the  contingency  contemplated  by  the 
statute  must  have  actually  happened, — that  is,  there 
must  have  been  a  failure  on  the  part  of  the  original 

74  Post,  §  644;  Conn  v.  Oberto,  32  Colo.  313,  76  Pac.  369,  370. 
76  Post,  tit.  vi,  ch.  V,   §§  623-638;   eh.  vi,   §§  642-654. 
76  Rev.  Stats.,   §  2324;   17  Stats,  at  Large,  92;   Comp.  Stats.   1901,  p. 
1426;  5  Fed.  Stats.  Ann.  19. 


935  RELOCATION,    NEW    DISCOVERY   NOT    NECESSARY.         §  403 

locator  to  perform  tlie  annual  work.  No  relocation 
may  be  made  to  take  effect  in  tlie  future." 

The  right  of  an  original  locator  to  amend  his  location 
for  the  purpose  of  correcting  defects  or  embracing  ad- 
ditional ground  has  been  fully  considered  elsewhere." 

It  is  our  present  purpose  to  discuss  the  manner  in 
which  such  relocations  as  are  sanctioned  by  the  federal 
law  may  be  made  and  to  whom  the  privilege  of  such 
relocation  is  extended. 

§  403.  New  discovery  not  essential  as  basis  of  relo- 
cation.—It  is  a  well-established  rule  that  there  can  be 
no  valid  location  of  a  mining  claim  without  a  discov- 
ery;" but  it  has  been  held  that  it  is  not  necessary  that 
the  locator  should  be  the  first  discoverer  of  a  vein,  but 
it  must  not  only  be  known  to  him,  but  must  be  adopted 
and  claimed  by  him,  in  order  to  give  validity  to  the 
location. ^° 

So,  if  the  original  location  was  based  upon  a  valid 
discovery,  and  the  relocator  finds  the  vein  exposed 
within  the  limits  of  the  claim,  this  is  sufficient  upon 
which  to  base  a  relocation.^^ 

The  theory  of  the  law  upon  which  the  relocation  is 
permitted  is,  undoubtedly,  that  if  the  original  locator 
who  made  the  discovery  manifests  his  unwillingness  to 

TT  Belk  V.  Meagher,  104  U.  S.  279,  284,  26  L.  ed.  735,  1  Morr.  Min. 
Rep.  510.     See  ante,  §  363;  post,  §  645a. 

78  Ante,  §§  396-398. 

79  Ante,  §  335. 

80  Nevada-Sierra  Oil  Co.  v.  Home  Oil  Co.,  98  Fed.  673,  677;  Hayes  v. 
Lavagnino,  17  Utah,  185,  53  Pac.  1029;  Jupiter  M.  Co.  v.  Bodie  Cons. 
M.  Co.,  7  Saw.  96,  108,  11  Fed.  666,  676,  4  Morr.  Min.  Rep.  411;  Bay 
V.  Oklahoma  &  Southern  Gas,  Oil  &  Min.  Co.,  13  Okl.  425,  73  Pac.  936, 
940;  McMillen  v.  Ferrum  M.  Co.,  32  Colo.  38,  105  Am.  St.  Rep.  64,  74  Pac. 
461,  463;  S.  C,  in  error  (dismissed),  197  U.  S.  343,  346,  25  Sup.  Ct. 
Rep.  t533,  49  L.  ed.  784. 

81  Armstrong  v.  Lower,  6  Colo.  393,  395,  15  Morr.  Min.  Rep.  631. 


§  404      RELOCATION    OF  FORFEITED  OR  ABANDONED   CLAIMS.      936 

proceed  with  the  development  of  the  ground,  and  his 
location  becomes  subject  to  forfeiture  for  failure  to 
perform  the  necessary  work,  anyone  may  succeed  to 
the  right  based  upon  the  original  discovery  by  relocat- 
ing the  ground,  so  that  successive  relocations  based 
upon  successive  forfeitures  may  all  be  founded  upon 
the  one  discovery.  A  new  discovery  is  not  requisite 
for  each  relocation. 

§  404.  Relocation  admits  the  validity  of  the  orig- 
inal.— ^A  relocation  impliedly  admits  the  validity  of  the 
prior  location.*^  There  can  be  no  relocation  unless 
there  has  been  a  prior  valid  location,  or  something 
equivalent,  of  the  same  property.*' 

The  courts  draw  a  distinction  between  a  locator  and 
relocator,  classing  the  fonner  as  an  original  discoverer  ' 
of  mineral  before  unknown,  and  the  latter  as  the  mere 
appropriator  of  mineral  discovered  by  another  who 
had  failed  to  exercise  the  privilege  conferred  upon  him 
by  law.  The  relocation,  if  avowedly  made  as  such  in 
the  location  notice,**  is  equivalent  to  an  admission  that 
the  relocator  claims  a  forfeiture  by  reason  of  a  failure 
on  the  part  of  the  first  locator  to  comply  with  the  law. 
Such  being  the  case,  the  only  inquiry  is,  as  to  whether 
or  not  the  original  locator  performed  the  requisite 
labor.*^ 

82  Bakke  v.  Latimer,  3  Alaska,  95,  99;  Zeiger  v.  Dowdy,  13  Ariz.  331, 
114  Pac.  565,  566,  1  Water  &  Min.  Cas.  409. 

83  Belk  V.  Meagher,  104  U.  S.  279,  289,  26  L.  ed.  735,  1  Morr.  Min. 
Eep.  510;  Cunningham  v.  Pirrung,  9  Ariz.  62,  80  Pac.  329,  330;  Score 
V.  Griffin,  9  Ariz.  295,  80  Pac.  331,  332;  Slothower  v.  Hunter,  15  Wyo. 
189,  88  Pac.  36,  39;  Ford  v.  Campbell,  29  Nev,  578,  92  Pac.  206,  209; 
Zerres  v.  Vanina,  134  Fed.  610,  614;  S.  C,  in  error,  150  Fed.  564,  80 
C.  C.  A.  366;  Clason  v.  Matko,  223  U.  S.  646,  653,  32  Sup.  Ct.  Rep.  392, 
56  L.  ed.  588. 

84  Cunningham  v.  Pirrung,  9  Ariz.  62,  80  Pac.  329,  330;  Score  v. 
Griffin,  9  Ariz.  295,  80  Pac.  331,  332. 

85  Wills  V.  Blain,  4  N.  M.  378,  20  Pac.  798,  802;  Providence  G.  M. 


937   RELOCATION  OF  LAPSED  CLAIM  BY  ORIGINAL  LOCATOR.   §  405 

However,  where  a  location  is  made  of  a  claim  which, 
as  a  matter  of  fact,  had  been  previously  located,  which 
fact  was  unknown  to  the  later  locator,  there  would  be 
no  estoppel  to  contest  the  validity  of  the  original  loca- 
tion.^® 

Most  of  the  states  have  enacted  laws  governing  relo- 
cations and  prescribing  the  contents  of  relocation  cer- 
tificates. They  are  discussed  in  a  succeeding  sec- 
tion." 

§  405.  Relocation  by  original  locators. — In  speak- 
ing of  relocation  by  an  original  locator,  we  have  no 
reference  to  locations  made  for  the  purpose  of  curing 
defects,  or  readjusting  boundaries.  We  have  called 
these  amended  locations,  and,  as  such,  have  dealt  with 
them  in  the  preceding  article.*®  What  we  now  refer 
to  are  cases  wherein  the  original  locator  seeks  to  evade 
the  requirements  of  the  law  as  to  development  and 
annual  expenditure,  and  endeavors  to  perpetuate  his 
estate  by  periodical  relocations. 

The  question  was  presented  to  the  supreme  court  of 
Utah  in  the  following  form : — 

Can  the  locator  of  a  quartz  mining  claim  who  has 
allowed  his  location  to  lapse  by  a  failure  to  perform 
the  necessary  work  make  a  relocation  or  new  loca- 
tion covering  the  same  ground?** 

Co.  V.  Burke,  6  Ariz.  323,  57  Pae.  641;  Jackson  v.  Prior  Hill  M.  Co., 
19  S.  D.  453,  104  N.  W.  207,  208. 

86  Murray  v.  Osborne  (Nev.),  Ill  Pac.  31,  34,  under  a  statute  of  that 
state. 

8T  Post,  §  408. 

88  Ante,  §§  396-398. 

89  Warnock  v.  De  Witt,  11  Utah,  324,  40  Pac.  205.  This  case  was  ap- 
pealed to  the  supreme  court  of  the  United  States.  The  appeal  was 
dismissed  for  failure  to  comply  with  rule  10.  Mem.  Dec,  18  Sup.  Ct. 
Rep.  949. 


§  405      RELOCATION   OF   FORFEITED  OR  ABANDONED   CLAIMS.      938 

The  court  failed  to  see  any  reason  why  such  right 
should  be  denied.  It  based  its  ruling  upon  the  follow- 
ing grounds: — 

(1)  That  right  is  recognized  by  the  circuit  court  of 
the  ninth  circuit  ®°  and  by  the  land  department ;  ^^ 

(2)  The  fact  that  a  prior  locator,  after  his  right  has 
lapsed,  may  renew  it  by  resuming  work,  would  appear 
to  be  a  favor  or  right  granted  to  such  prior  locator,  but 
to  deny  him  the  right  to  relocate  is  to  deny  him  a 
privilege  which  is  given  to  strangers. 

The  conclusion  of  the  court  is,  that  the  prior  loca- 
tor, in  addition  to  the  right  to  resume  work,  and  thus 
relieve  himself  from  the  danger  of  incurring  forfeiture, 
should  also  have  the  same  rights  as  strangers  to  re- 
locate. 

"We  are  fully  aware  of  the  weight  to  be  given  to  the 
decisions  of  the  supreme  court  of  a  state  or  territory, 
and  for  that  reason  it  is  with  a  great  deal  of  hesitancy 
that  we  intrude  our  individual  views  in  opposition  to 
such  a  decision,  in  the  absence  of  some  authoritative 
ruling  emanating  from  a  court  of  equal  dignity  to  sup- 
port our  theories.  But  the  rule  announced  by  the  su- 
preme court  of  Utah  is  so  opposed  to  what  we  consider 
the  true  intent  and  spirit  of  the  mining  laws,  that  we 
feel  justified  in  criticising  it,  and  in  doing  so  to  defer- 
entially present  our  reasons  for  upholding  a  contrary 
doctrine. 

In  the  first  place,  we  think  the  fallacy  of  the  rule  is 
exposed  upon  the  face  of  the  decision,  ex  viscerihus 
suis,  considering  the  cases  cited  in  it  as  a  part  of  the 
decision: — 

The  doctrine  asserted  by  the  supreme  court  of  Utah, 
we  respectfully  urge,  is  not  recognized  by  the  circuit 

80  Hunt  V.  Patchin,  35  Fed.  816,  818,  13  Saw.  304. 

91  Acting  Commissioner  Holcomb,  Copp's  Min.  Lands,  p.  300. 


939   RELOCATION  OF  LAPSED  CLAIM  BY  ORIGINAL  LOCATOR.   §  405 

court  of  the  ninth  circuit  in  the  case  of  Hunt  v.  Pat- 
chin.®^  That  case  involved  a  question  between  original 
colocators,  one  of  whom,  by  common  consent  of  all, 
had  relocated  the  claim  in  his  own  name,  and  afterward 
undertook  to  claim  the  entire  title  as  against  his  origi- 
nal cotenants.  This  the  court  would  not  permit  him  to 
do.  Under  these  circumstances,  the  relocating  cotenant 
could  not,  with  any  advantage  to  himself,  deny  the  va- 
lidity of  the  relocation,  nor  could  he  exclude  his  co- 
tenants  from  participating  in  such  title  as  he  acquired. 
In  this  case,  a  certificate  of  purchase  was  issued  to  the 
relocating  claimant  alone.  The  validity  of  the  reloca- 
tion was  never  questioned  by  the  land  department, 
which  tribunal  was  probably  never  advised  that  the 
basis  of  the  relocation  was  the  dereliction  of  the  reloca- 
tor  and  his  cotenants.  All  that  Hunt  v.  Patchin  at- 
tempts to  determine  is,  that  whatever  right  accrues  to 
one  of  several  original  locators  under  a  relocation 
which  is  made  in  his  name,  by  common  consent,  inures 
to  the  benefit  of  all.  But  that  any  such  right  accrues, 
the  circuit  court  did  not  attempt  to  decide. 

The  ruling  of  the  land  department  referred  to  ^^  ap- 
pears in  the  form  of  a  letter  addressed  by  Acting  Com- 
missioner Holcomb  to  a  man  in  Leadville.  It  was  not 
a  litigated  case.  The  acting  commissioner  was  of  the 
opinion  that  one  of  several  colocators,  all  of  whom  are 
in  default,  may  relocate  in  his  own  name  and  hold  it 
adversely  to  his  former  cotenants. 

As  to  the  conclusion  reached  by  the  supreme  court  of 
Utah,  there  is  every  reason  why  the  right  to  relocate 
should  be  given  to  strangers  and  should  be  denied  to 
the  original  locator.  Under  the  mining  laws,  discovery 
and  appropriation  are  recognized  as  the  sources  of  title 

92  35  Fed.  816,  13  Saw.  304. 
»3  Copp's  Min.  Lands,  p.  300. 


.  §  405      RELOCATION   OF  FORFEITED  OR  ABANDONED   CLAIMS.      940 

to  mining  claims,  and  development  by  working  as  the 
condition  of  continued  ownership  until  patent  is  ob- 
tained."* 

The  supreme  court  of  the  United  States  has  said  that 
the  object  of  the  statute  as  to  performance  of  annual 
work  is 

to  require  every  person  who  asserted  an  exclusive 
right  to  his  discovery  or  claim  to  expend  something 
of  labor  or  value  on  it  as  evidence  of  his  good  faith 
and  to  show  that  he  was  not  acting  in  the  principle 
of  "dog  in  the  manger."®'' 

The  decision  of  the  Utah  court  encourages  the  "dog 
in  the  manger"  practice  by  the  indolent  locator,  and 
everyone  familiar  with  local  conditions  in  the  mining 
regions  knows  to  what  extent  the  chronic  delinquent 
avails  himself  of  the  invitation  contained  in  this  de- 
cision. 

After  his  discovery,  the  locator  is  allowed  certain 
periods  to  perfect  his  location,  and  the  period  of  one 
year  from  the  first  day  of  January  next  succeeding  the 
date  of  his  location  in  which  to  perform  one  hundred 
dollars'  worth  of  labor. 

Let  us  illustrate:  A  vein  is  discovered  June  1,  1900. 
The  locator  has  until  January  1,  1902,  in  which  to  per- 
form his  work.  He  fails  to  do  so;  but  on  January  2, 
1902,  relocates  the  claim,  basing  his  right  to  do  so  upon 
his  own  previous  neglect  to  comply  with  the  law.  If  he 
has  the  same  right  as  a  stranger  to  relocate  under  these 
circumstances,  he  has  the  same  length  of  time  allowed 
to  a  stranger  to  perform  the  first  year's  labor  after  the 
date  of  the  relocation;  that  is,  until  January  1,  1904. 
On  January  2,  1904,  he  may  repeat  this  proceeding, 

9*  Erhardt  v.  Boaro,  113  U.  S.  527,  535,  5  Sup.  Ct.  Rep.  560,  28 
L.  ed.  1113,  15  Morr.  Min.  Rep.  472. 

95  Chambers  v.  Harrington,  111  U.  S.  350,  355,  4  Sup.  Gt.  Rep.  428, 
28  L.  ed.  452. 


941   RELOCATION  OF  LAPSED  CLAIM  BY  ORIGINAL  LOCATOR.   §  405 

and  obtain  an  additional  two  jears,  and  so  on  in- 
definitely. It  seems  to  us  that  this  is  a  manifest  fraud 
upon  the  government.  It  is  a  perversion  of  the  law, 
and  in  direct  violation  of  its  spirit  and  intent,  to  say 
that  the  original  locator  may  take  advantage  of  his 
own  dereliction,  and  use  his  own  neglect  and  wrong  as 
a  foundation  to  either  perpetuate  an  estate  or  create  a 
new  one.  The  law  under  which  he  obtained  his  first 
privilege  provides  the  only  method  by  which  his 
neglect  can  be  condoned,  and  that  is  by  resuming  work 
prior  to  relocation.  It  is  illogical  to  say  that  he  may 
accomplish  this  result  in  any  other  way  than  by  strictly 
pursuing  the  methods  provided  for  by  the  statute. 

There  is  another  principle  which  seems  to  us  to  be 
decisive  of  the  question:  The  forfeiture  is  not  complete 
until  a  relocation  has  been  made.  It  is  the  entry  of  a 
new  claimant  with  intent  to  relocate  the  property,  and 
not  mere  lapse  of  time,  that  tenninates  the  right  of  the 
original  claimant.^' 

The  supreme  court  of  California  says: — 

It  is  not  provided  that  a  mere  failure  to  comply 
with  the  statutory  requirement  shall  terminate  the 
locator's  right;  the  sole  effect  of  such  failure  is  to 
throw  the  land  open  to  location  hy  others,  and  in  the 
absence  of  such  other  location  the  original  claim- 
ant's right  to  resume  work  and  to  hold  his  claim 
remains.®^ 

The  right  to  enter  and  resume  work  prior  to  the  re- 
location by  another  is  evidence  that  the  original  estate 
is  not  wholly  lost  by  the  failure  to  do  the  work.°* 

96  Little  Gunnell  M.  Co.  v.  Kimber,  1  Morr.  Min.  Rep.  536,  539,  Fed. 
Cas.  No.  8402;  Co-operative  Copper  &  Gold  M.  Co.  v.  Law  (Or.,  May 
27,  1913),  132  Pac.  521,  522. 

97  Madison  v.  Octave  Oil  Co.,  154  Cal.  768,  99  Pac.  176,  178.  Italics 
in  the  quotation  are  the  author's. 

98  Lakin  v.  Sierra  Buttes  G.  M.  Co.,  25  Fed.  337,  343,  11  Saw.  231, 
241. 


§  405      RELOCATION   OF  FORFEITED  OR  ABANDONED   CLAIMS.      942 

The  supreme  court  of  Colorado  thus  forcibly  states 
the  rule : — 

As  between  the  locator  and  the  general  govern- 
ment the  failure  to  do  the  annual  assessment  work 
does  not  result  in  a  forfeiture.  In  other  words,  it  is 
not  necessary  to  perform  the  annual  labor  except  to 
protect  the  rights  of  the  locator  against  parties  seek- 
ing to  initiate  a  title  to  the  same  premises.  ....  To 
otherwise  express  our  views,  it  might  be  said  that 
after  a  valid  location  the  title  thus  acquired  remains 
so,  whether  the  annual  assessment  work  is  per- 
formed or  not,  until  forfeited  or  abandoned.^' 

Forfeiture  is  not  complete  until  someone  else  has 
appropriated  the  property.'"** 

This  is  in  accord  with  the  views  of  the  land  depart- 
ment.' 

If  this  doctrine  be  true,  that  the  estate  of  the  original 
locator,  as  between  himself  and  the  government,  re- 
mains unimpaired  by  the  failure  to  perform  the  work, 
how  is  it  possible  for  such  locator  to  terminate  such  es- 
tate and  create  a  new  one.  He  ought  not  to  be  per- 
mitted to  periodically  re-enter  and  oust  himself,  predi- 
cating such  re-entry  and  ouster  on  his  own  delinquency, 
to  save  the  necessity  of  developing  his  claim. 

To  say  that  the  original  locator  has  the  power  within 
himself  to  make  effectual  a  forfeiture  arising  from  his 
own  delinquency  by  perfecting  a  relocation,  is  to  place 
in  his  hands  the   extraordinary  privilege   of   holding 

89  Beals  V.  Cone  (on  rehearing),  27  Colo.  473,  83  Am.  St.  Rep.  92, 
62  Pac.  948,  958. 

100  McCarthy  v.  Speed,  11  S.  D.  362,  77  N.  W.  590,  593,  50  L.  R.  A. 
184;  Wilson  v.  Freeman,  29  Mont.  470,  75  Pac.  84,  86,  68  L.  R.  A.  833, 
to  which  there  is  a  note  discussing  this  question  (p.  842)  ;  Cunningham 
V.  Pirrung,  9  Ariz.  62,  80  Pac.  329,  330;  Snowy  Peak  M.  Co.  v.  Tam- 
arack Chesapeak  M.  Co.,  17  Idaho,  630,  107  Pac.  60,  61.     Post,  §  645. 

1  Wilson  V.  Champagne  M.  Co.,  29  L.  D.  491;  Coleman  v.  McKenzie, 
29  L.  D.  359. 


943   RELOCATION  OF  LAPSED  CLAIM  BY  ORIGINAL  LOCATOR.   §  405 

mineral  lands  perpetually,  without  doing  any  work 
whatever,"  at  least  in  those  states  where  the  relocator 
is  not  required  to  do  preliminary'  work/  "Where  he  is 
required  to  perform  such  work,  such  performance 
might  be  treated  as  resumption,  and  no  relocation  is 
necessary.  In  any  event,  the  rule  upon  this  subject 
should  be  uniform,  because  it  is  based  upon  the  federal 
statute. 

As  was  said  by  the  supreme  court  of  California,  the 
work  prescribed  in  the  act  must  be  done,  or  the  claim  is 
open  to  relocation,  unless  work  is  resumed  before  the 
second  location  is  made.  The  conditions  imposed  by 
the  act  of  congress  are  wise  and  salutary,  and  are  by 
no  means  onerous.  "It  is  the  duty  of  the  courts  to 
hold  the  locators  of  mining  claims  bound  by  them."  * 

The  right  to  relocate  is  given  to  others  as  a  penaltij 
imposed  on  the  original  locator  for  failure  on  his  part 
to  perform  the  conditions  required  of  him.  It  is  not 
conceded  to  him  as  a  reward  for  his  neglect,  or  as  an 
inducement  held  out  to  him  to  evade  the  law. 

There  are  several  cases  which  may  be  said  to  support, 
inferentially  at  least,  the  doctrine  of  the  Utah  case, 
under  discussion.     These  cases  deserve  consideration. 

Saunders  v.  Mackey^  was  an  action  to  quiet  title  to 
a  mining  claim,  where  one  cotenant,  after  having 
agreed  with  his  co-owners  to  represent  the  claim,  failed 
to  do  so,  and  relocated  in  his  own  name,  to  the  exclu- 
sion of  his  associates.  The  court  suggested  that  the 
excluded  cotenant  had  mistaken  his  remedy,  which  was 
either  an  action  for  damages,  or  to  erect  a  trust,  but 

2  Text  quoted  in  Ingemarson  v.  Coflfey,  41  Colo.  407,  92  Pac.  908,  911. 

s  McCann  v.  McMillan,  129  Cal.  350,  62  Pac.  31,  32. 

4  Russell  V.  Brosseau,  65  Cal.  605,  608,  4  Pac.  643,  645;  Du  Prat  v. 
James,  65  Cal.  555,  4  Pac.  562,  563,  15  Morr.  Min.  Eep.  341;  Wright 
r.  Killian,   132   Cal.  56,  64   Pac.   98,  99. 

»  5  Mont.  527,  6  Pac.  361,  362. 


§  405      RELOCATION   OF  FORFEITED  OR  ABANDONED   CLAIMS.      944 

held  that  the  relocation  was  valid.  The  decision  of  the 
court  seems  to  have  been  based  upon  the  theory  that 
the  failure  to  perform  the  annual  work  ipso  facto  re- 
stored the  lands  to  the  public  domain,  a  theory  which 
is  not  supported  by  the  weight  of  authority. 

Lockhart  v.  Wills®  and  Lockhart  v.  Johnson^  arose 
out  of  facts  analogous  to  those  of  Saunders  v.  Mackey, 
with  one  important  distinction.  The  location  in  the 
latter  cases  was  never  perfected  in  the  original  in- 
stance. The  preliminary  notices  were  posted  by  one 
in  the  name  of  all  the  co-owners,  but  there  was  a  failure 
to  perform  the  acts  required  by  the  laws  of  New  Mex- 
ico as  a  condition  precedent  to  the  creation  of  a  valid 
location.  After  the  lapse  of  the  statutory  period, 
within  which  the  necessary  acts  were  required  to  be 
performed,  the  cotenant  who  initiated  the  location  con- 
spired with  other  parties  to  make  a  location  excluding 
his  original  cotenants.  This  location  was  made  and 
perfected,  and  the  excluded  original  associates  brought 
ejectment.  The  courts  held  the  later  location  valid. 
In  fact,  it  was  the  only  location  which  had  ever  been 
perfected.  They  further  held  that,  under  the  circum- 
stances, ejectment  was  not  the  proper  remedy.  In  a 
suit  in  equity  subsequently  brought  to  erect  a  trust  it 
was  determined  by  the  supreme  court  of  the  United 
States  that  a  trust  ex  maleficio  arose  which  could  be 
enforced.* 

In  the  case  of  Conway  v.  Hart^  a  claim  had  been 
abandoned  for  several  years,  when  the  original  owners 

6  9  N.  M.  344,  54  Pac.  336,  340. 

7  181  U.  S.  516,  527,  21  Sup.  Ct.  Rep.  665,  45  L.  ed.  979.  This  case 
is  commented  on  and  principle  applied  in  Bergquist  v.  West  Vir- 
ginia Wyoming  Copper  Co.,  18  Wyo.  234,  106  Pac.  673,  682. 

8  Lockhart  v.  Leeds,  195  U.  S.  427,  25  Sup.  Ct.  Eep.  76,  49  L.  ed. 
263;  Lockhart  v.  Washington  G.  &  S.  M.  Co.,  16  N.  M.  223,  117  Pae. 
833,  836. 

»  129  Cal.  480,  62  Pac.  44,  45. 


945   RELOCATION  OF  LAPSED  CLAIM  BY  ORIGINAL  LOCATOR.   §  405 

returned,  relocated  and  resumed  work.  The  court  held 
the  second  location  to  be  valid  as  against  one  made 
later  by  third  parties.  The  case  does  not  discuss  any 
of  the  basic  principles  involved  in  the  ultimate  anaylsis 
of  the  subject  under  discussion. 

The  case  of  Legoe  v.  Chicago  Fishing  Co."  was  a 
case  involving  the  right  of  a  locator  of  a  "fishing  site" 
to  relocate  his  claim  after  having  failed  to  mark  it  as 
prescribed  by  the  local  statute.  The  court  followed  the 
doctrine  of  the  Utah  case  of  Warnock  v.  De  Witt  after 
referring  to,  commenting  on  and  declining  to  follow  the 
author's  analysis  of  the  subject  as  it  appeared  in  the 
second  edition  of  this  work.  The  analogy  between 
fishing  and  mining  claims  is  not  striking,  the  two  stat- 
utes are  dissimilar  and  the  decision  is  not  overwhelm- 
ingly persuasive. 

Leedy  v.  Lehfeldt"  was  a  case  where  the  original 
locator  claimed  to  have  relocated  after  midnight, 
December  31st,  a  claim  which  he  had  previously  located 
but  upon  which  he  failed  to  do  the  assessment  work. 
A  stranger  relocated  on  January  1st,  at  10:30  A.  M., 
and  introduced  proof  that  there  were  no  new  stakes  on 
the  claim.  The  original  locator  had  judgment  in  the 
trial  court,  but  it  was  reversed  for  error  in  admitting 
improper  testimony.  The  question  discussed  in  this 
section  was  not  raised. 

In  Bergquist  v.  West  Virginia  &  Wyoming  Copper 
Co.^'  the  question  is  referred  to  but  not  decided. 

The  supreme  court  of  Colorado,  however,  supports 
the  doctrine  contended  for  by  the  author,  quotes  from 
the  text  of  this  section  as  it  appeared  in  the  second  edi- 
tion, and  applies  the  rule  to  the  perf  onnance  of  prelim- 

10  24  Wash.  175,  64  Pac.  141,  143. 

11  162  Fed.  304,  89  C.  C.  A.  184. 

12  18  Wyo.  234,  106  Pac.  673,  682. 

Lindley  on  M. — 60 


§  400      RELOCATION   OF   FORFEITED  OR  ABANDONED   CLAIMS.      946 

inary  development  work.  The  court  holds  that  a 
discoverer  or  locator  cannot,  by  posting  new  notices  or 
changing  the  dates  in  old  ones  prevent  the  ground  from 
being  relocated  by  others  after  the  lapse  of  the  sixty- 
day  period  from  the  date  of  discovery  or  first  notice." 
Mr.  Morrison  concurs  with  the  author's  views,  and 
points  out  a  legislative  construction  by  congress  by 
insertion  at  the  proper  context  of  the  words  "open  to 
location  hy  others'^  in  the  special  act  concerning  an- 
nual labor  on  placer  claims  in  Alaska.^* 

California  has  a  statute  which  disqualifies  a  delin- 
quent locator  from  relocating  within  a  period  of  three 
years  from  the  date  of  the  original  location, ^^  and  Mon- 
tana inhibits  such  locations  altogether.^®  This  legis- 
lation, however,  is  subject  to  the  criticism  that  it 
conflicts  with  the  federal  law.  If  under  that  law  an 
original  locator  may  relocate  his  claim,  having  failed 
to  perform  the  annual  work,  it  is  doubtful  if  the  state 
can  deprive  him  of  that  privilege  for  any  period  or  at 
all. 

The  foregoing  cases  are  all  which  have  come  under 
our  observation  which  lend  any  aid  to  the  solution  of 
the  problem.  It  may  be  that  the  doctrine  of  Wamock 
V.  De  Witt  is  the  correct  one.  But  we  are  not  able  to 
reconcile  it  with  the  principles  announced  by  other 
courts  of  equal  dignity,  which  principles  are  neces- 
sarily involved  in  the  detennination  of  the  question 
here  discussed. 

§  406.  Relocation  by  one  of  several  original  locators 
in  hostility  to  the  others. — If  we  are  right  in  the  con- 

13  Ingemarson  v.  Coffey,  41  Colo.  407,  92  Pac.  908,  910.     See,  also, 
Eureka  Exp.  Co.  v.  Tom  Moore  M.  &  M.  Co.  (Colo.),  123  Pac.  655,  656. 
1*  Morrison's  Mining  Eights,  14th  ed.,  p,  147. 
15  Civ.  Code,  §   1426s. 
i«  Kev.  Code  1907,  §  22S9. 


947      RELOCATION  BY  ONE  OF  SEVERAL  ORIGINAL  LOCATORS.      §  406 

elusions  reached  in  the  preceding  section,  that  the 
original  locator  cannot  treat  his  failure  to  perform  or 
resume  work  as  the  basis  of  a  valid  relocation,  it  must 
necessarily  follow,  that  neither  one  nor  any  number  of 
several  locators  who  are  delinquent  in  the  performance 
of  the  annual  work  would  be  permitted  to  make  a  re- 
location based  upon  such  delinquency.  If  we  are 
wrong  in  the  deductions  previously  stated,  it  follows 
that  a  delinquent  colocator  may  relocate  the  claim,  sub- 
ject to  such  redress  as  the  courts  will  afford  the  ex- 
cluded co-owner. 

The  supreme  court  of  Montana  has  held  that  mining 
claims  owned  by  several  in  common  must  be  "repre- 
sented"— that  is,  the  work  must  be  performed — as  if 
owned  by  one  person;  that  ''representation"  is  a  unity; 
that  co-owners  may  cause  representation  work  to  be 
done  on  the  claim  according  to  their  respective  inter- 
ests, but  when  completed  it  must  amount  to  one  whole 
representation;  otherwise,  the  claim  is  not  protected 
from  relocation,  and  that  under  such  circumstances 
one  of  the  co-owners  might  relocate. ^^  If  this  be  a  cor- 
rect statement  of  the  rule,  it  is  manifestly  subject  to 
the  limitations  pointed  out  by  the  decision  of  the  su- 
preme court  of  the  United  States  announced  in  Turner 
v.  Sawyer,^®  wherein  it  is  said  that  the  general  rule, 
that  the  purchase  of  an  outstanding  title,  or  encum- 
brance, upon  the  joint  estate  for  the  benefit  of  one 
tenant  in  common  inures  to  the  benefit  of  all,  because 
there  is  an  obligation  between  them  arising  from  their 
joint  claim  and  community  of  interest,  and  that  one  of 
them  shall  not  affect  the   claim   to    the   prejudice    of 

IT  Saunders  v.  Mackey,  5  Mont.  523,  6  Pac.  361,  362. 
18  150  U.  S.  578,  586,  14  Sup.  Ct.  Rep.  192,  37  L.  ed.  1189,  17  Morr. 
Min.  Rep.  683. 


§  ^OG      RELOCATION   OP  FORFEITED  OR   ABANDONED   CLAIMS.      948 

others,^'  should  apply  to  a  case  where  one  cotenant  of 
a  mining  claim  secures  the  entire  title  in  his  individual 
name.^° 

The  courts  generally  concede  the  rule  to  be,  that 
where  one  of  several  co-owners  in  a  mining  claim  ap- 
plies for  a  patent  in  his  own  name,  the  excluded  co- 
tenants  are  not  adverse  claimants  within  the  meaning 
of  the  law  requiring  them  to  intervene  in  patent  pro- 
ceedings, as  they  claim  equities  which  are  based  upon 
the  legal  title  thus  conveyed. ^^ 

The  land  department  rulings  are  now  in  harmony 
with  this  doctrine." 

The  supreme  court  of  Colorado  announces  the  follow- 
ing rule  which  seems  to  embody  all  the  foregoing  prin- 
ciples : — 

A  co-owner  who  amends  the  location  notice,  relo- 
cates the  claim  or  procures  the  issuance  of  a  patent 
in  his  name  will  not  be  permitted  to  thus  exclude  the 
other  owners  and  appropriate  the  claim  to  himself, 
but  will  be  declared  to  hold  the  right  or  title  thereby 
acquired  in  trust  for  all,  ....  nor  will  the  trust 
be  avoided  or  its  enforcement  defeated  merely  be- 
cause a  stranger  to  the  original  claim  participates 

i»  For  a  general  discussion  of  rights  and  remedies  between  cotenants 
or  co-owners,  see  post,  §§  788-793. 

20  Followed  in  McCarthy  v.  Speed,  11  S.  D.  362,  77  N.  W.  590,  593, 
50  L.  E.  A.  184;  S.  C,  second  appeal,  12  S.  D.  7,  80  N.  W.  135;  Van 
Wagenen  v.  Carpenter,  27  Colo.  444,  61  Pac.  698,  702;  Perelli  v.  Can- 
diani,  42  Or.  625,  71  Pac.  537;  Stevens  v.  Grand  Central  M.  Co.,  133 
Fed.  28,  30,  67  C,  C.  A.  284.  See,  also,  Ballard  v.  Golob,  34  Colo.  417, 
83  Pac.  376,  379;  Stephens  v.  Golob,  34  Colo.  429,  83  Pac.  381;  Lock- 
hart  V.  LfCeds,  195  U.  S.  427;  Freeman  on  Cotenancy,  §  151. 

21  Sussenbach  v.  First  National  Bank,  5  Dak.  477,  41  N.  W.  662,  667; 
Brundy  v.  Mayfield,  15  Mont.  201,  38  Pac.  1067;  Doherty  v.  Morris,. 
11  Colo.  12,  16  Pac.  911,  912;  Stevens  v.  Grand  Central  M.  Co.,  133 
Fed.  28,  30,  67  C.  C.  A.  284;  Harrison  v.  Cole,  50  Colo.  470,  116  Pac. 
1123,  1126. 

22  Thomas  v.  Elling,  25  L.  D.  495;  S.  C,  on  review,  26  L.  D.  220;. 
Coleman  v.  Homestake  M.  Co..  30  L.  D.  364;  post,%  728. 


949      RELOCATION  BY  ONE  OF  SEVER.VL  ORIGINAL  LOCATORS.      §  406 

with  the  unfaithful  co-owner  in  the  proceedings  to 
wrongfully  exclude  his  companions  in  interest." 

This  is  essentially  the  doctrine  approved  by  the 
supreme  court  of  the  United  States." 

Be  that  as  it  may,  although  the  views  announced  by 
the  supreme  court  of  Montana  seem  to  give  support  to 
the  doctrine  of  the  supreme  court  of  Utah,  cited  in  the 
preceding  section,  we  cannot  see  why  the  reasoning  ap- 
plied by  us  in  that  section  to  the  case  of  an  individual 
locator  should  not  apply  with  equal  force  to  all  the  co- 
locators.  In  the  latter  case  the  obligation  rests  upon 
all  alike  to  perform  the  required  work.  One  of  the  co- 
tenants  might  save  the  entire  estate  by  himself  per- 
forming the  labor.  In  such  event,  he  would  have  a 
right  of  contribution  against  his  cotenants  for  their 
proportion  of  expenditures  made  to  save  the  common 
estate,^'  which  he  might  assert,  either  in  an  action  for 
partition,^®  or  by  '/advertising  out"  under  the  provi- 
sions of  the  Revised  Statutes,"  and  it  is  possible  that 
this  is  the  exclusive  remedy  afforded  the  diligent 
cotenant.^*  But  to  say  that  one  co-owner  can  make  his 
own  delinquency,  as  well  as  that  of  his  cotenants,  the 
basis  for  acquiring  a  new  title,  seems  to  us  repugnant 
to  the  intent  and  spirit  of  the  law.^^ 

Possession  of  one  cotenant  is  possession  of  all,  and 
will  inure  to  the  benefit  of  all  until  he  should  by  some 

23  Stevens  v.  Grand  Central  M.  Co.,  133  Fed.  28,  30,  67  C.  C.  A.  284. 

24  Lockhart  v.  Leeds,  195  U.  S.  427,  25  Sup.  Ct.  Rep.  76,  49  L.  ed.  263. 

25  See  Beck  v.  O'Connor,  21  Mont.  109,  53  Pac.  94,  96;  Oliver  v. 
Lassing,  57  Neb.  352,  77  N.  W.  802,  804.  See  Smith  v.  Smith,  150  N.  C. 
81,  63  S.  E.  177,  178;  McSorley  v.  Lindsay,  62  Wash.  203,  113  Pac. 
267,  268. 

2«  Holbrooke  v.  Harrington  (Cal.),  36  Pac.  365,  366. 

27  §  2324;  Faubel  v.  McFarland,  144  Cal.  717,  78  Pac.  261,  262. 

2«  McDaniel  v.  Moore,  19  Idaho,  43,  112  Pac.  317,  319;  post,  §  646. 

2»  Consult  Royston  v.  Miller,  76  Fed.  50. 


§  407      RELOCATION   OP  FORFEITED   OB  ABANDONED   CLAIMS.      950 

notice,  actual  or  constructive,  indicate  to  the  others 
that  such  possession  was  hostile  or  adverse.*** 

§  407.  Relocation  by  agent  or  others  occupying  con- 
tractual or  fiduciary  relations  with  original  locator. — 

An  agent,  trustee,  or  other  person  holding  confidential 
relations  with  the  original  locator,  will  not  be  per- 
mitted to  relocate  mining  claims,  and  secure  to  him- 
self advantages  flowing  from  a  breach  of  trust  obli- 
gations." 

This  rule,  however,  it  would  seem,  does  not  apply  to 
the  wife  of  a  co-owner  who  relocates,  in  the  absence  of 
evidence  showing  the  relocation  to  have  been  made 
under  some  agreement  with  the  husband  which 
amounted  to  a  fraud.^^ 

The  general  rule  is  that  an  agent  cannot  make  a 
profit  for  himself  out  of  the  business  in  which  he  is  en- 
gaged for  his  principal  or  make  use  of  the  information 
obtained  through  his  employment  to  acquire  interests 
in  the  subject  matter  of  his  agency  adverse  to  those  of 
his  principal.^* 

30  Faubel  v.  McFarland,  144  Cal.  717,  78  Pac.  261. 

31  O'Neill  V.  Otero,  15  N.  M.  707,  113  Pac.  614;  Lockhart  ▼.  EoUins, 
2  Idaho,  503,  514,  21  Pac.  413,  416,  16  Morr.  Min.  Rep.  16;  Utah  M.  & 
M.  Co.  V.  Dickert  &  M.  S.  Co.,  6  Utah,  183,  21  Pac.  1002,  5  L.  R.  A. 
259;  Largey  v.  Bartlett,  18  Mont.  265,  44  Pac.  962,  965;  Fisher  v.  Sey- 
mour, 23  Colo.  542,  49  Pac.  30,  33;  Argentine  M.  Co.  v.  Benedict,  18 
Utah,  183,  55  Pac.  559;  Haws  v.  Victoria  Copper  Co.,  160  U.  S.  303, 
316,  16  Sup.  Ct.  Rep.  282,  40  L.  ed.  436;  Van  Wagenen  v.  Carpenter, 
27  Colo.  444,  61  Pac.  698,  701.  See,  also.  Bunker  Hill  Co.  v.  Pascoe, 
24  Utah,  60,  66  Pac.  574,  575.  Text  quoted  in  Co-operative  Copper  & 
Gold  M.  Co.  V.  Law  (Or.,  May  27,  1913),  132  Pac.  521,  522. 

32  Helstrom  v.  Rodes,  30  Utah,  122,  83  Pac.  730,  731. 

33  Calumet  Gold  M.  &  Mill.  Co.  v.  Phillips,  31  Colo.  267,  72  Pac. 
1064,  1066,  22  Morr.  Min.  Rep.  677.  In  this  case  a  mining  super- 
intendent having  discovered  the  existence  of  vein  in  a  shaft  sunk  on  his 
employer's  claim,  the  apex  of  which  was  outside  of  such  claim,  pur- 
chased on  his  own  account  the  ground  containing  the  apex.     It  was  held 


951     RELOCATION  BY  AGENT  OF  ORIGINAL  LOCATION.    §  407 

One  in  possession  of  an  unpatented  mining  claim  en- 
tering under  a  lease  from  the  owner  will  not  be  per- 
mitted to  relocate  for  nonperformance  of  assessment 
work  on  the  part  of  the  owner.'*  Title  conveyed  by  a 
patent  issued  to  such  lessee  or  his  "dummy"  predi- 
cated upon  a  relocation  made  under  such  circumstances 
will  be  held  in  trust  for  the  true  owners."  Where, 
however,  a  contractual  or  fiduciai-y  relationship  is  ter- 
minated, the  rule  no  longer  applies,  and  a  subsequent 
relocation  by  the  former  agent  or  tmstee  has  been  up- 
held.'^ An  original  locator  cannot  suffer  forfeiture 
and  relocate,  or  cause  the  ground  to  be  relocated  by 
others  in  collusion  with  him,  so  as  to  cut  off  the  rights 
of  a  mortgagee  under  a  mortgage  executed  by  such 
original  locator." 

A  relocation  of  claims  previously  owned  by  a  corpo- 
ration made  by  a  third  party  in  collusion  with  stock- 
holders of  the  corporation  in  order  to  defeat  the  title 
of  an  execution  purchaser,  based  upon  a  valid  judg- 
ment against  the  corporation,  is  fraudulent.'* 

The  attempt  of  an  agent  employed  to  do  annual 
assessment  work  in  a  mining  claim,  after  failure  or  in- 
tentional neglect  to  do  such  work,  to  relocate  the  claim, 
even  though  such  attempted  location  is  made  in  the 
name  of  a  third  party  from  whom  the  agent  subse- 
quently obtains  title  by  deed,  is  a  fraud  on  his  princi- 

that  such  acquisition  by  the  superintendent  was  not  in  the  property  of 
the  employer  or  adverse  to  their  interests.     It  was  therefore  upheld. 

34  Justice  M.  Co.  v.  Barclay,  82  Fed.  554,  559;  Yarwood  v.  Johnson, 
29  Wash.  643,  70  Pac.  123. 

35  Stewart  v.  Westlake,  148  Fed.  349,  78  C.  C.  A.  341. 

36  Page  V.  Summers,  70  Cal.  121,  12  Pac.  120,  121,  15  Morr.  Min. 
Rep.  617. 

37  Alexander  v.  Sherman,  2  Ariz.  326,  16  Pac.  45,  46,  15  Morr.  Min. 
Rep.  638. 

38  Wailes  v.  Davies,  158  Fed.  667;  S.  C,  on  appeal,  164  Fed.  397, 
90  C.  C.  A.  385. 


§  4^08      EELOCATION   OF  FORFEITED  OB  ABANDONED   CLAIMS.      952 

pal.    The  agent  will  be  charged  in  equity  with  a  trust 
ex  maleficio.^* 

It  has  been  suggested  by  the  supreme  court  of  Ari- 
zona that  an  original  locator,  after  sale  by  quitclaim 
deed  to  a  third  person  who  fails  to  perform  the  annual 
labor,  may  relocate  and  hold  the  claim.*"  But  in  such 
case  the  obligation  to  perform  the  labor  rested  upon  his 
grantee,  and  not  upon  the  original  locator,  and  by  re- 
locating he  does  not  profit  by  his  own  failure  to  per- 
form the  work.  His  grantee  occupies  the  position  of 
the  original  locator,  and  the  latter,  in  relocating,  that 
of  a  mere  stranger  to  the  title. 

§  408.  Manner  of  perfecting  relocations— Statutory 
regulations. — With  the  exception  of  the  necessity  for 
making  a  new  discovery,  the  relocation  of  an  aban- 
doned mining  claim  is  made  in  substantially  the  same 
manner  as  the  original." 

The  abandoned  ground  is  "open  to  relocation  in  the 
same  manner  as  if  no  location  of  the  same  had  ever 
been  made."*'  By  this  is  meant  that  all  the  require- 
ments of  the  law  as  to  marking  of  boundaries,  posting 
notices,  recording  certificates,  performance  of  develop- 
ment work,  and  such  other  acts  as  are  required  by  the 
federal  or  state  laws,  except  the  discovery,  must  be 
complied  with  in  cases  of  relocation  to  the  same  extent 
as  in  original  locations,  except  where  the  local  statutes 
provide  for  alternative  equivalents.     The  original  loca- 

89  O'Neill  V.  Otero,  15  N.  M.  707,  113  Pac.  614. 

40  Blake  v.  Thorne,  2  Ariz.  347,  16  Pac.  270,  271. 

41  Armstrong  v.  Lower,  6  Colo.  393,  15  Morr.  Min.  Eep.  631. 

42  Rev.  Stats.,  §2324;  17  Stats,  at  Large,  92;  Comp.  Stats.  1901, 
p.  1426;  5  Fed.  Stats.  Ann.  19, 


953  PERFECTING  RELOCATIONS — STATE  LEGISLATION.         §  408 

tor  and  the  relocator,  in  this  respect,  are  on  the  same 
footing." 

A  relocator  may  adopt  stakes  and  monuments  of  a 
former  location  if  they  are  still  on  the  ground,"  in  the 
absence  of  a  statute  specially  authorizing  it,  provided 
the  law  in  force  in  the  state  does  not  require  new  mark- 
ing, as  it  does  in  some  of  the  states. 

Most  of  the  precious  metal  bearing  states  have  legis- 
lated upon  the  subject  of  relocating  abandoned  claims. 

Colorado  has  enacted  a  law"*  which  provides  that  the 
relocation  of  abandoned  lode  claims  shall  be  by  sinking 
a  new  discovery  shaft  and  fixing  new  boundaries,  in  the 
same  manner  as  if  it  were  the  location  of  a  new  claim; 
or  the  relocator  may  sink  the  original  shaft  ten  feet 
deeper  than  it  was  at  the  time  of  the  abandonment,  and 
erect  new,  or  adopt  old,  boundaries,  renewing  the  posts, 
if  removed  or  destroyed.  In  either  case,  a  new  location 
stake  shall  be  erected.  Arizona,"  Idaho,"  Montana,*^ 
Nevada,"    New    Mexico,"    North    Dakota,'°     South 

43  Pelican  &  Dives  M.  Co.  v.  Snodgrass,  9  Colo.  339,  342,  12  Pac.  206, 
208. 

44  Conway  v.  Hart,  129  Cal.  480,  62  Pac.  44,  45;  Brockbank  v. 
Albion  M.  Co.,  29  Utah,  367,  81  Pac.  863,  864;  Bergquist  v.  West 
Virginia  &  Wyoming  Copper  Co.,  18  Wyo.  234,  106  Pac.  673,  680; 
Eiverside  Sand  &  Cement  Co,  v.  Hardwick,  16  N.  M.  479,  120  Pac.  323, 
324. 

44a  Mills'  Annot.  Stats.,  §  3162;  Eev.  Stats.  1908,  §  4211;  Annot.  Stats. 
1911,  p.  515. 

46  Eev.  Stats.  1901,  S  3241;  amended  1907,  p.  27. 

46  Laws  1895,  p.  25,  §  yii;  Civ.  Code  1901,  §  2560;  Eev.  Code  1907, 
§  3212. 

47  Eev.  Code  1895,  §  3615;  amended  1907,  p.  18;  Eev.  Code  1907, 
§  2286. 

48  Comp.  Laws  1900,  §  214;  Eev.  Laws  1912,  §  2428. 

49  Laws  1889,  p.  42,  §  iii;   Comp.  Laws  1897,  §  2300. 

»o  Eev.  Code  1895,  §   1439;   Id.  1899,   §   1439;   Id.  1905,  §   1813. 


§  408      EELOCATION  OF  FORFEITED  OR  ABANDONED  CLAIMS.      954 

Dakota,"  Washington,""  and  Wyoming,"  have  statutes 
of  the  same  general  character  with  occasional  varia- 
tions as  to  details.  There  is  no  legislation  upon  the 
subject  in  either  California,  Oregon  or  Utah. 

With  reference  to  the  certificate  of  relocation  of 
abandoned  ground,  some  of  the  states^*  provide  that  it 
may  contain  a  statement  that  the  location  is  in  whole 
or  in  part  of  abandoned  ground.  The  use  of  the  word 
*'may"  is  permissive,  and  not  mandatory.  A  certifi- 
cate which  does  not  contain  such  a  statement  is  not  for 
that  reason  defective." 

In  other  states"  it  is  provided  that  the  certificate 
must  or  shall  state  that  the  whole  or  any  part  of  the 
new  location  covers  abandoned  ground.  Laws  of  this 
character  have  been  held  to  be  mandatory,  where  the^ 
relocator  relied  upon  the  abandonment  of  a  prior  valid 
location.  Where  it  was  contended  that  the  original 
location  was  invalid,  the  recital  was  not  required  to  be 
included  in  the  certificate.  In  such  case  the  only  issue 
is  as  to  the  validity  of  the  original  location." 

51  Comp.  LaM's  Dak.  1887,  §  2010.  Adopted  by  South  Dakota — Laws 
1890,  ch.  cv;  Grantham's  Annot.  Stats.  S.  D.  1899,  §  2669;  Rev.  Pol. 
Code  1903,  §  2545. 

52  Laws  1899,  p.  69,  §  8;  Eem.  &  Bal.  Codes  1909,  §  7365;  National 
Mill  &  M.  Co.  V.  Picolo,  54  Wash.  617,  104  Pac.  128,  129;  reversed  on 
rehearing,  57  Wash.  572,  107  Pac.  353,  354;  Paragon  M.  &  D.  Co.  v. 
Stevens  County  Exp.  Co.  (Wash.),  87  Pac.  1068. 

53  Laws  1888,  p.  89,  §  21;  Eev.  Stats.  1899,  §  2552;  Comp.  Stats. 
1910,  §  3473. 

6*  Nevada  and  Wyoming. 

55  Carlin  v.  Freeman,  19  Colo.  App.  334,  75  Pac.  26,  27.  A  similar 
statute  was  in  force  in  Colorado,  until  repealed  in  1911.  Stats.  1911, 
p.  515. 

56  North  Dakota,  South  Dakota,  Washington. 

57  Cunningham  v.  Pirrung,  9  Ariz.  62,  80  Pac.  329,  330;  Score  v. 
Griffin,  9  Ariz.  295,  80  Pac.  331,  332;  Matko  v.  Daley,  10  Ariz.  175,  85 
Pac.  721,  723.  A  similar  statute  was  in  force  until  March  12,  1907, 
at  which   time   it  was   repealed.     Sess.   Laws   1907,  p.   27.     But   as  the 


955     PERFECTING  RELOCATIONS — STATE  LEGISLATION.    §  408 

A  location  notice  omitting  the  statement  may  be 
amended  and  relate  back  to  the  original  in  the  absence 
of  inter\^oning  rights.^*  Where  the  second  locator  is 
not  aware  that  the  ground  had  been  previously  located 
and  there  is  nothing  observable  on  the  ground  to  put 
him  on  inquiry,  it  is  not  probable  that  the  failure  to 
insert  the  recital  in  the  certificate  would  defeat  his 
location,  or  prevent  him  from  attacking  the  validity  of 
the  original  location  or  establishing  a  subsequent  aban- 
donment. This  rule  is  established  by  statute  in 
Nevada/®  The  intention  to  adopt  the  markings  of  a 
prior  location  may  be  inferred  from  the  circumstances 
surrounding  the  relocation.®" 

As  a  relocator  is  required  to  perform  the  same  acts  in 
their  logical  sequence  as  an  original  locator,  and  that 
necessarily  some  time  must  elapse  before  all  the  acts 
can  be  completed,  he  should  be  allowed  the  same  privi- 
leges in  this  behalf  as  are  accorded  an  original  locator. 
He  should  be,  and  undoubtedly  is,  in  most  of  the  states 
at  least,  protected  in  his  possession  as  against  the  orig- 
inal locator  who  seeks  to  resume  after  the  relocator  has 
taken  the  initial  step  and  before  he  has  taken  the 
final  one.  The  question  as  to  the  extent  of  the  reloca- 
tor's  rights  pending  the  perfection  of  his  location  may 

supreme  court  has  held  that  the  rule  was  applicable  to  locations  made 
prior  to  the  repeal  (Clason  v.  Matko,  12  Ariz.  213,  100  Pac.  773,  774, 
affirmed  on  appeal,  223  U.  S.  646,  652-655,  32  Sup.  Ct.  Rep.  392,  56 
L.  ed.  588),  the  legislature  on  March  18,  1909,  passed  an  act  which  pro- 
vided that  no  relocation  of  an  abandoned  mining  claim  made  prior  to 
March  12,  1907,  shall  be  held  invalid  upon  the  ground  that  it  failed  to 
contain  the  recital.  See,  also.  Paragon  M.  &  D.  Co.  v.  Stevens  County 
Exp.  Co.,  45  Wash.  59,  87  Pac.  1068,  and  Peachy  v.  Frisco  Gold  Mines 
Co.,  204  Fed.  659,  667. 

68  Kinney  v.  Lundy,  11  Ariz.  75,  89  Pac.  496. 

69  Murray  v.  Osborne  (Nev.),  Ill  Pac.  31,  33. 

60  Bergquist  v.  West  Virginia  &  Wyoming  Copper  Co.,  18  Wyo.  234, 
106  Pac.  673,  680. 


§  408      RELOCATION   OF  FORFEITED  OR  ABANDONED   CLAIMS.      956 

at  this  time,  by  reason  of  the  supplemental  state  legis- 
lation on  the  subject,  be  somewhat  academic.  But  the 
discussion  may  present  something  of  historical  value, 
and  possibly  in  some  localities  be  a  matter  of  serious 
moment. 

The  supreme  court  of  Montana  at  one  time  held  that 
if  an  original  locator  resumes  work  before  the  relocator 
re-marks  the  boundaries  and  perfoiTQS  all  the  acts  re- 
quired to  perfect  a  valid  relocation,  the  forfeiture  is  not 
worked  and  the  right  to  complete  the  relocation  is 
lost,®^  which  doctrine  obtained  in  that  state®^  until 
1907,  when  the  legislature  overruled  it  by  passing  an 
act  which  provided  that — 

The  rights  of  a  relocator  of  any  abandoned  or  for- 
feited mining  claim  hereafter  relocated  shall  date  ^ 
from  the  posting  of  his  notice  of  location  thereon, 
and,  while  he  is  duly  performing  the  acts  required  by 
law  to  perfect  his  location,  his  rights  shall  not  be 
affected  by  any  re-entry  or  resumption  of  work  by 
the  former  locator  or  claimant.®'  ^ 

The  supreme  court  of  California  at  a  time  when  it 
was  sponsor  for  the  rule  that  no  appreciable  time 
was  allowed  an  original  locator  in  which  to  perfect 
his  location,®*  adopted  the  views  announced  by  the 
Montana  courts.®^  Latterly  the  California  courts  an- 
nounced that  it  was  conceded  that  the  discoverer  has  a 
reasonable  time  in  which  to   complete  the  location.®" 

61  Gonu  V.  Eussell,  3  Mont.  358 ;  McKay  v.  McDougall,  25  Mont.  258, 
87  Am.  St.  Rep.  395,  64  Pac.  669,  671. 

62  Thornton  v.  Kaufman,  40  Mont.  282,  135  Am.  St.  Rep.  618,  106 
Pac.  361,  362. 

63  Stats.  1907,  p.  18,  §  5,  p.  21;  Rev.  Code  1907,  §  2287. 

64  Ante,  §  339. 

65  Holland  v.  Mt.  Auburn  G.  Q.  M.  Co.,  53  Cal.  149,  9  Morr.  Min. 
Rep.  497;  Belcher  Cons.  G.  M.  Co.  v.  Deferrari,  62  Cal.  160;  Pharis  v. 
Muldoon,  75  Cal.  284,  17  Pac.  70,  15  Morr.  Min.  Rep.  348.  See,  also, 
Klopenstine  v.  Hays,  20  Utah,  45,  57  Pac.   712. 

66  McCleary  t.  Broaddus,  14  Cal.  App.  60,  111  Pac.  125,  127. 


957  PERFECTING  RELOCATIONS — STATE  LEGISLATION,         §  408 

"We  are  impressed  with  the  conviction  that  the  correct 
rule  has  always  been  in  consonance  with  the  statutory 
declaration  of  the  legislature  of  Montana  found  in  the 
act  of  1907  above  referred  to. 

"Where,  under  statutes  which  either  contemplate  or 
provide  for  a  series  of  acts,  the  performance  of  which 
necessarily  requires  time,  such  as  the  sinking  of  a  new 
discovery  shaft  ten  feet  deep,  or  an  old  one  ten  feet 
deeper,  the  performance  of  any  one  of  these  acts  in  the 
series  ought  to  give  the  relocator  the  necessary  time  to 
complete  the  others.  Otherwise,  it  is  difficult  to  see 
how  a  valid  relocation  could  ever  be  made,  without  the 
consent  of  the  original  locator.  He  could  "resume 
work"  at  any  time  before  the  relocator  had  completed 
his  development.  Unless  the  relocator  can  be  pro- 
tected in  his  possession,  for  the  purpose  of  completing 
his  relocation,  there  is  but  little  use  in  his  attempting 
it.  Each  attempt  at  relocation  would,  at  some  stage, 
find  the  original  locator  in  a  state  of  "resumption." 
While  forfeitures  are  odious,  we  think  the  courts  are 
sometimes  altogether  too  lenient  in  dealing  with  a  class 
of  people  frequently  found  in  mining  camps,  who  will 
neither  work  themselves  nor  permit  others  to  do  so. 

Judge  Hallett  was  of  the  opinion  that  the  right  of  the 
original  locator  to  resume  work  and  prevent  forfeiture 
lapses,  unless  the  right  is  exercised  before  another  has 
taken  possession  of  the  property  with  intent  to  relocate 
it,®^  and  Mr.  Morrison  shares  these  views,®*  which,  in 
our  judgment,  are  sound.®® 

67  Little  Gunnell  M.  Co.  v.  Kimber,  1  Morr.  Min.  Rep.  536,  Fed.  Cas, 
No.  8402. 

68  Morr.  Min.  Rights,  lOth  ed.,  p.  91,  14th  ed.,  p.  125. 

69  The  supreme  court  of  Montana  discusses  this  section  as  it  appeared 
in  the  second  edition,  and  disagrees  with  the  conclusions  reached.  McKay 
V.  McDougall,  25  Mont.  258,  87  Am.  St.  Rep.  395,  64  Pac.  669,  672. 
Evidently  the  legislature  of  Montana  accepted  the  author's  \iew8  aa  to 


§  409      RELOCATION   OP   FORFEITED  OR  ABANDONED   CLAIMS.      958 

A  discussion  of  what  constitutes  "resumption"  is 
deferred  for  treatment  in  another  chapter/"  Succes- 
sive relocations  may,  of  course,  be  made  as  often  as  the 
relocators  fail  on  their  part  to  comply  with  the  law. 
Where  one  has  made  a  relocation  and  permits  the  time 
to  elapse  without  performing  the  requisite  work,  he 
should  be  debarred  the  same  as  an  original  locator 
from  again  relocating.  Whether  or  not  such  is  the  law 
depends  upon  the  correctness  of  our  theories  advanced 
in  a  preceding  section.^^ 

§  409.  Right  of  second  locator  to  improvements 
made  by  the  first. — When  the  estate  of  the  first  locator 
becomes  extinguished  by  his  failure  to  comply  with  the 
law,  and  the  second  enters  and  perfects  his  relocation,  v 
the  dominion  and  control  over  the  property  passes  to 
the  latter.  If  the  former  thereafter  remains  in  posses- 
sion, unless  at  the  time  of  the  relocation  he  had  re- 
sumed work,  he  is  a  mere  occupant  without  color  of 
title,  and  the  completion  of  the  second  location,  if 
effected  peaceably  and  in  good  faith,  operates  in  law  as 
an  ouster  of  the  prior  occupant."  Thereafter,  the  relo- 
cator  is  clothed  with  ' '  the  exclusive  right  of  possession 
and  enjoyment  of  all  the  surface  included  within  the 
lines  of  the  location.  "^^ 

Such  improvements  or  betterments  as  have  been 
placed  upon  the  property  by  the  original  locator,  if 

what  should  be  the  rule  and  reversed  the  courts  by  passing  the  act  of 
1907  referred  to  in  the  text  supra. 

70  Post,  §  652. 

71  Ante,  §  405. 

72  Belk  V.  Meagher,  3  Mont.  65,  80,  1  Morr.  Min.  Eep.  522;  S.  C,  on 
appeal,  104  U.  S.  279,  284,  26  L.  ed.  735,  1  Morr.  Min.  Rep.  510;  ante, 
§§  218,  219. 

73  Rev.  Stats.,  §  2322;  17  Stats,  at  Large,  91;  Comp.  Stats.  1901,  p. 
1425;  5  Fed.  Stats.  Ann.  13. 


959       eelocator's  right  to  existing  improvements.     §  409 

they  fall  within  the  class  designated  as  fixtures,  become 
a  part  of  the  realty,  and  the  subsequent  appropriation 
of  the  land  carries  with  it,  necessarily,  whatever  may 
be  affixed  to  it.  Prior  to  the  deteiTQination  of  his 
estate  by  the  perfection  of  a  relocation,  it  cannot  be 
doubted  that  the  prior  locator  may  sever  and  remove 
all  machinery',  buildings,  and  other  improvements 
which,  by  the  manner  of  their  attachment  to  the  soil, 
have  become  a  part  of  the  freehold.  But  his  right  of 
entry  for  that  purpose  ceases  when  his  estate  is  termin- 
ated. 

It  is  a  general  rule  of  law  that  all  improvements  of 
this  character  upon  public  lands  of  the  United  States 
pass  to  the  purchaser  from  the  government,^*  and  the 
relocator  of  a  mining  claim  holds  his  estate  by  pur- 
chase.''^ One  cannot  set  up  equities  in  improvements 
against  the  government,  or  a  purchaser  from  it,^^  and 
state  statutes  which  permit  their  removal  after  the 
land  has  passed  into  private  ownership  are  void,  as  in- 
terfering with  the  primary  right  of  disposal  of  the  soil 
reserved  to  the  United  States  upon  the  admission  of 
the  several  states. ^^ 

It  is  unnecessary  to  enter  into  a  detailed  discussion 
of  what  constitutes  fixtures.  It  has  been  frequently 
held  that  machinery,  such  as  engines,  boilers,  hoisting- 

74  Collins  V.  Bartlett,  44  Cal.  371,  384;  Pennybecker  v.  McDougal,  48 
Cal.  160,  163;  McKiernan  v.  Hesse,  51  Cal.  594;  Treadway  v.  Sharon, 
7  Nev.  37;  Winans  v.  Beidler,  6  Okl.  603,  52  Pac.  405;  Hiatt  v.  Brooks, 
17  Neb.  33,  22  N.  W.  73,  75;  Hill  v.  Pitt,  2  Neb.  (Unof.)  151,  96 
N.  W.  339. 

76  Meyerdorf  v.  Frohner,  3  Mont.  2S2,  320,  5  Morr.  Min.  Rep.  559; 
ante,  §  233. 

78  Deffeback  v.  Hawke,  115  U.  S.  392,  407,  6  Sup.  Ct.  Rep.  95,  29 
L.  ed.  423;  Sparks  v.  Pierce,  115  U.  S.  408,  413,  6  Sup.  Ct.  Rep.  102,  29 
L.  ed.  428. 

77  Collins  V.  Bartlett,  44  Cal.  371,  384. 


§  413  LODES  WITHIN  PLACERS.  960 

works,  mills,  pumps,  and  things  of  a  like  character  an- 
nexed to  the  soil  for  mining,  become  part  of  the  free- 
hold.'^    As  such,  they  will  pass  to  the  relocator. 

While  this  is  undoubtedly  true,  upon  application  for 
a  patent  the  relocator  will  not  be  permitted  to  include 
in  his  estimate  of  the  value  of  improvements  required 
by  law  to  be  made  as  a  condition  precedent  to  patent 
any  of  the  labor  done  or  improvements  made  by  the 
original  locator." 

A  grant  from  the  original  locator  to  one  who  has 
effected  a  valid  relocation  is  ineffective  for  this  pur- 
pose.^" 

Expenditures  for  such  purpose  must  have  been  made 
by  the  relocator  or  those  deraigning  title  through 
him.®^ 


Article  XII.    Lodes  Within  Placers. 


§  413.     Eight  to  appropriate  lodes 

within  placers. 
§  414.     Manner   of   locating  lodes 

within  placers. 


§  415.     Width   of    lode    locations 
within  placers. 


§  413.    Right  to  appropriate  lodes  within  placers. — 

That  the  two  classes  of  mineral  deposits,  those  falling 
within  the  designation  of  lodes,  or  veins,  and  those 

78  Merritt  v.  Judd,  14  Cal.  60,  67,  6  Morr.  Min.  Eep.  62;  Treadway 
V.  Sharon,  7  Nev.  37;  Roseville  Alta  M.  Co.  v.  Iowa  G.  M.  Co.,  15 
Colo.  29,  22  Am.  St.  Rep.  373,  24  Pac.  920,  921,  16  Morr.  Min.  Rep.  63; 
Arnold  v.  Goldfield  Third  Last  Chance,  32  Nev.  447,  109  Pac.  718,  721; 
Conde  v.  Sweeney,  16  Cal.  App.  157,  116  Pac.  319,  320. 

79  Acting  Commissioner  Holcomb,  Copp's  Min.  Lands,  p.  300;  Com- 
missioner Burdett,  1  Copp's  L.  O.  179;  Russell  v.  Wilson  Creek  Cons.  M. 
Co.,  30  L.  D.  321;  Yankee  Lode,  30  L.  D.  289. 

80  Yankee  Lode,  30  L.  E.  289. 

81  Rev.  Stats.,  §  2322;  17  Stats,  at  Large,  91;  Comp.  Stats.  1901,  p. 
1425;  5  Fed.  Stats.  Ann.  13. 


961      APPROPRIATION  OF  LODES  WITHIN  PLACERS.     §  413' 

usually  called  placers,  frequently  exist  in  the  same 
superficial  area  is  a  matter  of  common  experience. 

That  when  so  found  they  may  be  held  by  the  same  or 
different  persons  is  well  settled  by  both  judicial  and 
departmental  decisions/^ 

While  it  is  undoubtedly  true  that  a  mining  location, 
whether  lode  or  placer,  is  property  in  the  highest  sense 
of  the  term,  and  when  perfected  is  equivalent  to  a 
grant  from  the  government,*^  yet  it  does  not  follow  that 
the  thing  granted  is  the  same  in  both  classes  of  loca- 
tions, nor  that  things  resei-\^ed  from  the  operation  of 
one  grant  are  likewise  excepted  from  the  operation  of 
the  other. 

There  is  a  marked  distinction  between  the  surface 
rights  acquired  by  a  lode  location  and  those  flowing 
from  a  placer  location.  In  the  former,  there  is  a  grant 
of  the  exclusive  right  of  enjoyment  of  the  surface  and 
ever}'thing  within  vertical  planes  drawn  downward 
through  the  surface  boundaries,  subject  only  to  the  ex- 
tralateral  right  of  outside  apex  proprietors  to  pursue 
their  veins  underneath  such  surface.  No  subsequent 
locator,  either  lode  or  placer,  can  invade  such  surface, 
though  he  may  openly  and  peaceably  enter  for  the  pur- 
pose of  laying  his  lines  in  such  a  manner  as  to  properly 
define  his  extralateral  right.®*  On  the  other  hand, 
lodes  found  within  the  placer  surface,  or  underneath 
it,  if  their  existence  is  known  prior  to  the  application 
for  placer   patent,   are   not   the   subject    of  a   placer 

82  Eeynolds  v.  Iron  S.  M.  Co.,  116  U.  S.  687,  695,  6  Sup.  Ct.  Rep. 
601,  29  L.  ed.  774,  15  Morr.  Min.  Rep.  591;  Aurora  Lode  v.  Bulger  Hill 
Placer,  23  L.  D.  95. 

83  Belk  V.  Meagher,  104  U.  S.  279,  283,  26  L.  ed.  735,  1  Morr.  Min. 
Rep.  510;  Gwillim  v.  DonDellan,  115  U.  S.  45,  5  Sup.  Ct.  Rep.  1110,  29 
L.  ed.  348,  15  Morr.  Min.  Rep.  482;  Mt.  Rosa  M.  M.  &  L.  Co.  v.  Palmer. 
26  Colo.  56,  77  Am.  St.  Rep.  245,  56  Pac.  176,  177,  50  L.  E.  A.  2S9. 

8*  A7ite,  §§  363,  363a. 
Lindley  on  M. — 61 


§  il3  LODES  WITHIN  PLACERS.  962 

grant,"  Therefore,  the  placer  claimant  may  not  own 
everything  upon  the  surface  or  found  within  vertical 
planes  drawn  downward  through  the  surface  bounda- 
ries. The  policy  of  the  government  with  reference  to 
lodes  is  to  sever  them  from  the  body  of  the  public 
lands,  and  to  deal  with  them  and  the  land  immediately 
inclosing  them  as  separate  and  distinct  entities." 

The  location  of  mining  ground  for  placer  purposes 
does  not  effect  such  severance.  The  placer  claimant 
may,  in  the  absence  of  a  discovery  and  location  by 
others,  obtain  the  title  to  the  lode,  but  he  has  not  such 
right  by  virtue  of  his  prior  placer  appropriation,  unless 
the  existence  of  the  lode  remains  unknown  until  the 
application  for  a  placer  patent  is  filed."  It  is  no  objec- 
tion to  the  validity  of  a  placer  location  that  it  embracesv 
veins  or  lodes  as  well  as  placer  deposits,*^  but  the  right 
to  appropriate  the  lode  must  flow  from  the  discovery  of 
the  lode.  Whosoever  first  discovers  the  lode  may 
appropriate  it  by  complying  with  the  laws  conferring 
privileges  upon  such  discoverers.  If  he  fails  to  do  so, 
it  is  open  to  the  next  comer;  and  this  rule  applies  to  the 
placer  claimant  as  well  as  to  strangers.  If,  having  dis- 
covered it,  he  fails  to  manifest  his  intention  to  claim  it 
by  appropriating  it  under  the  lode  laws,  it  may  be  the 
subject  of  appropriation  by  others,  the  same  as  if  it 

85  Keynolds  v.  Iron  S.  M.  Co.,  116  U.  S.  687,  693,  6  Sup.  Ct.  Rep.  601, 
29  L.  ed.  774,  15  Morr.  Min.  Eep.  591;  Iron  S.  M,  Co.  v.  Mike  &  Starr 
M.  Co.,  143  U.  S.  394,  402,  12  Sup.  Ct.  Rep.  543,  36  L.  ed.  201;  Dahl 
V.  Raunheim,  132  U.  S.  260,  262,  10  Sup.  Ct.  Rep.  74,  33  L.  ed.  324, 
16  Morr.  Min.  Rep.  217;  Clary  v.  Hazlitt,  67  Cal.  286,  7  Pac.  701,  702; 
Mt.  Rosa  M.  M.  &  L.  Co.  v.  Palmer,  26  Colo.  56,  77  Am.  St.  Rep.  245, 
56  Pac.  176,  178,  50  L.  R.  A.  289;  Washoe  Copper  Co.  v.  Junila,  43 
Mont.  178,  115  Pac.  917,  1  Water  &  Min.  Cas.  451. 

86  McCarthy  v.  Speed,  11  S.  D.  362,  77  N.  W.  590,  592,  50  L.  E.  A. 
184;  Waterloo  M.  Co.  v.  Doe,  82  Fed.  45,  50. 

87  Aurora  Lode  v.  Bulger  Hill  Placer,  23  L.  D.  95. 

88  Hogan  V.  Idaho  Placer  M.  Co.,  34  L.  D.  42. 


963      APPROPRIATION  OF  LODES  WITHIN  PLACERS.     §  413 

■were  upon  the  public  domain;  provided,  always,  that 
such  api3ropriation  is  made  and  perfected  peaceably 
and  in  good  faith.*®  In  this  respect,  the  same  rules  of 
law  which  govcni  the  location  of  mineral  land  occu- 
pied or  claimed  by  others  under  inchoate  agricultural 
holdings  are  to  be  applied.  We  have  fully  discussed 
this  subject  in  preceding  articles.  It  is  unnecessary  to 
here  repeat  what  is  there  said.®° 

There  is  no  reason  why  a  placer  claimant  may  not 
locate  a  lode  claim  within  his  unpatented  placer  claim, 
or  consent  that  others  may  do  so.®^ 

The  issuance  of  a  placer  patent  containing  within  its 
limits  a  lode  known  to  exist  prior  to  the  patent  applica- 
tion, which  lode  is  not  claimed  and  applied  for  by  the 
placer  claimant  as  a  lode,  does  not  cut  off  the  right  to 
appropriate  it  in  hostility  to  the  patentee.  His  failure 
to  include  it  in  his  placer  application  is  a  conclusive 
declaration  that  he  has  no  right  to  it.^- 

The  courts  seem  to  make  a  distinction  between  the 
right  to  enter  openly  and  peaceably  within  the  limits  of 
a  prior  placer  claim  for  the  purpose  of  perfecting  the 

89  McCarthy  v.  Speed,  11  S.  D.  362,  77  N.  W.  590,  592,  50  L.  R.  A. 
184;  Mt.  Rosa  M.  M.  &  L.  Co.  v.  Palmer,  26  Colo.  56,  77  Am.  St.  Rep. 
245,  56  Pac.  176,  178,  50  L.  R.  A.  289;  Clipper  M.  Co.  v.  Eli  M.  &  L. 
Co.,  194  U.  S.  220,  230,  24  Sup.  Ct.  Rep.  632,  48  L.  ed.  944. 

90  Ante,   §§   206,  216,  219. 

91  McCarthy  v.  Speed,  11  S.  D.  362,  77  N.  W.  590,  592,  50  L.  R.  A. 
184;  Clipper  M.  Co.  v.  EU  M.  &  L.  Co.,  194  U.  S.  220,  230,  24  Sup. 
Ct.  Rep.  632,  48  L.  ed.  944. 

92  Rev.  Stats.,  §2333;  17  Stats,  at  Large,  94;  Comp.  Stats.  1901,  p. 
1433;  5  Fed.  Stats.  Ann.  45;  Sullivan  v.  Iron  S.  M.  Co.,  143  U.  S.  431, 
434,  12  Sup.  Ct.  Rep.  555,  36  L.  ed.  214;  Reynolds  v.  Iron  S.  M.  Co.,  116 
U.  S.  687,  698,  6  Sup.  Ct.  Rep.  601,  29  L.  ed.  774;  Iron  S.  M.  Co.  v.  Mike 
&  Starr  G.  &  S.  M.  Co.,  143  U.  S.  394,  402,  12  Sup.  Ct.  Rep.  543,  36 
L.  ed.  201;  Iron  S.  M.  Co.  v.  Reynolds,  124  U.  S.  374,  381,  8  Sup.  Ct. 
Rep.  598,  31  L.  ed.  466;  United  States  v.  Iron  S.  M.  Co.,  128  U.  S.  673, 
680,  9  Sup.  Ct.  Rep.  195,  32  L.  ed.  571;  Koyes  v.  Mantle,  127  U.  S. 
348,  353,  8  Sup.  Ct.  Rep.  1132,  32  L.  ed.  168,  15  Morr.  Min.  Rep.  611. 


§  413  LODES  WITHIN  PLACERS.  964 

location  of  a  previously  discovered  lode  and  the  privi- 
lege of  entering  upon  the  placer  surface  for  the  pur- 
pose of  prospecting  or  searching  for  undiscovered 
lodes.  The  supreme  court  of  Colorado,  while  conceding 
that  a  stranger  may  so  enter  within  the  placer  bound- 
aries to  locate  a  lode  previously  known  to  exist  therein," 
holds  that  he  may  not  make  such  an  entry  for  the  pur- 
pose of  searching  for  lodes  whose  existence  may  be  sus- 
pected but  not  demonstrated.^* 

One  may  not  go  upon  a  prior  valid  placer  location 
to  prospect  for  unknown  lodes  thereafter  discovered 
and  located  in  this  manner  and  within  the  placer 
boundaries  unless  the  placer  owner  has  abandoned 
his  claim,  waives  the  trespass  or  by  his  conduct  is 
estopped  to  complain  of  it.^^ 

This  is  nothing  more  than  the  application  of  the  gen- 
eral doctrine  that  a  valid  location  once  perfected  gives 
the  exclusive  right  of  possession,  and  no  one  may  enter 
thereon  for  the  purpose  of  initiating  an  adverse  loca- 
tion so  long  as  the  prior  location  remains  valid  and  sub- 
sisting.®^ 

In  this  respect  the  court  follows  the  doctrine  applied 
by  the  courts  to  locations  made  under  the  act  of  July 
26,  1866,  under  which  only  one  lode  could  be  claimed. 
Before  a  stranger  to  the  original  location  could  enter 
for  the  purpose  of  locating  a  second  lode,  the  fact  that 

93  See  Noyes  v.  Clifford,  37  Mont.  138,  94  Pac.  842,  844;  Kift  v. 
Mason,  42  Mont.  232,  112  Pac.  392,  394. 

»4  Clipper  M.  Co.  v.  Eli  M.  Co.,  29  Colo.  377,  93  Am.  St.  Eep.  89,  68 
Pac.  289,  64  L.  E.  A.  209. 

95  Clipper  M.  Co.  v.  Eli  M.  Co.,  29  Colo.  377,  93  Am.  St.  Rep.  89,  68 
Pac.  286,  289,  64  L,  R.  A.  209;  quoted  and  approved  on  appeal,  Clipper 
M.  Co.  V.  Eli  M.  Co.,  194  U.  S.  220,  230,  24  Sup.  Ct.  Rep.  632,  48 
L.  ed.  944. 

96  Moflfatt  V.  Blue  River  Gold  Extraction  Co.,  33  Colo.  142,  80  Pac. 
■V39,  140. 


965      APPROPRIATION  OF  LODES  WITHIN  PLACERS.     §  413 

two  lodes  existed  within  the  boun'daries  was  required 
to  be  first  established.^^ 

If  a  placer  claimant  has  abandoned  his  claim,  or 
waived  the  trespass,  or  by  his  conduct  is  estopped  from 
complaining  of  it,  the  subsequent  lode  location  will  be 
considered  valid. ^® 

The  principles  discussed  in  previous  sections,^'  con- 
cerning the  right  to  enter  upon  prior  claims  for  the 
purpose  of  laying  lines  or  establishing  monuments  with 
a  view  to  acquiring  something  not  claimed  b}^  or 
embraced  within  the  prior  location,  can  be  aptly  ap- 
plied to  the  case  of  lodes  ''known  to  exist"  within 
placer  claims. 

While  the  land  department  at  one  time  held  that  with 
the  issuance  of  the  placer  patent  its  jurisdiction  ter- 
minated, and  thereafter  it  had  no  right  to  entertain  a 
subsequent  application  for  a  patent  to  a  lode  claim 
within  the  patented  placer  limits,'""  it  subsequently 
changed  its  ruling  to  conform  to  the  legal  results  neces- 
sarily flowing  from  the  exposition  of  the  law  by  the 
supreme  court  of  the  United  States.^ 

The  same  rule  is  now  applied  to  known  lodes  within 
townsites.^  A  finding  by  a  court  in  an  adverse  suit 
brought  by  a  lode  claimant  against  the  placer  appli- 

97  Atkins  V.  Hendree,  1  Idaho,  95,  2  Morr.  Min.  Eep.  328. 

98  CTipper  M.  Co.  v.  Eli  M.  Co.,  29  Colo.  377,  93  Am.  St.  Eep.  89,  68 
Pac.  286,  289,  64  L.  R.  A.  209;  affirmed,  194  U.  S.  220,  24  Sup.  Ct. 
Rep.  632,  48  L.  ed.  944. 

99  §§  363,  363a. 

100  Rebel  Lode,  12  L.  D.  6S3;  Pike's  Peak  Lode,  14  L.  D.  47;  South 
Star  Lode,  17  L.  D.  280. 

1  South  Star  Lode,  on  review,  20  L.  D.  204;  Butte  &  Boston  M.  Co., 
21  L.  D.  125 ;  Cripple  Creek  G.  M.  Co.  v.  Mt.  Rosa  M.  M.  &  L.  Co.,  26 
L.  D.  622;  Alice  M.  Co.,  27  L.  D.  661;  Cape  May  M.  &  L.  Co.  t. 
Wallace,  Id.  676;  Ryan  v.  Granite  Hill  M.  Co.,  29  L.  D.  522. 

2  Ante,  §§  173,  177;  Pacific  Slope  Lode  v.  Butte  Townsite,  25  L.  D. 
518;  Gregory  Lode  Claim,  26  L.  D.  144. 


§  413  LODES  WITHER  PLACERS.  966 

cant,  that  there  was  no  known  lode,  will  be  treated  by 
the  department  as  an  adjudication  of  the  matter.^  The 
land  department  is  reluctant  to  reopen  the  question  of 
placer  character  of  land  at  the  instigation  of  a  lode 
claimant  where  years  have  elapsed  since  entry  for  pat- 
ent as  a  placer  claim.* 

It  is  not  our  purpose  to  here  define  what  is  meant  by 
a  **lode  known  to  exist  within  the  boundaries  of  a 
placer  claim,"  as  that  phrase  occurs  in  section  twenty- 
three  hundred  and  thirty-three  of  the  Revised  Statutes. 
This  will  be  fully  discussed  when  dealing  with  the  sub- 
ject of  placer  patents  and  the  nature  and  extent  of  title 
conferred  by  placer  locations.®  We  also  exclude  from 
the  discussion  controversies  over  the  character  of  the 
land,  that  is,  whether  a  given  deposit  is  placer  or  lode,^ 
such  a  controversy  as  has  arisen  in  the  rock  phosphate 
regions  of  the  west  discussed  in  a  subsequent  section." 
We  are  now  concerned  simply  with  the  manner  of  loca- 
ting lodes  within  placers,  the  existence  of  both  classes 
of  deposits  within  the  same  area  being  confessedly 
known  prior  to  the  application  for  the  placer  patent. 

We  are  justified  in  deducing  from  the  foregoing  the 
following  conclusions: — 

(1)  A  perfected  placer  location  does  not  confer  the 
right  to  the  possession  of  veins,  or  lodes,  which  may  be 
found  to  exist  within  the  placer  limits  at  any  time  prior 
to  filing  an  application  for  a  placer  patent; 

(2)  Such  lodes  may  be  appropriated  (a)  by  the 
placer  claimant,  or  {b)  by  others,  provided  the  appro- 
priation is  effected  by  peaceable  methods  and  in  good 
faith ; 

8  Alice  M.  Co.,  27  L.  D.  661.     Post,  §  720. 

*  Meaderville  M.  &  M.  Co.  v.  Raunlieini,  29  L.  D.  465. 

6  Post,  §  781, 

6  Post,  §  425a. 


967  MANNER    OF    LOCATING    LODES    WITHIN    PLACERS.       §  414 

(3)  Where  a  lode  is  known  to  exist  within  the  limits 
of  a  placer  location  at  any  time  prior  to  the  placer 
application  for  patent,  and  is  not  claimed  in  the  appli- 
cation as  a  lode,  the  title  to  such  lode  does  not  pass  by 
the  patent,  but  it  may  be  located  by  anyone  having  the 
requisite  qualifications,  provided  the  location  is  made 
peaceably  and  in  good  faith/ 

It  frequently  happens  that  after  the  issuance  of  a 
placer  or  an  agricultural  patent  a  valuable  lode  is  dis- 
covered within  the  patented  limits.  By  reason  of  the 
nature  of  the  grant,  this  lode  cannot  be  followed  on  its 
downward  course  beyond  the  vertical  bounding  planes. 
Under  such  circumstances  attempts  have  been  made  to 
surrender  or  reconvey  to  the  government  the  title 
deraigned  through  the  patent  so  as  to  render  a  lode 
location  with  the  accessory  extralateral  right  possible. 
These  attempts,  however,  have  not  been  successful,  for 
the  reason  that  the  officers  of  the  land  department  are 
not  invested  with  authority  by  congress  to  receive  titles 
to  properties  by  reconveyance  to  the  United  States  un- 
less the  original  patent  was  issued  through  inadvert- 
ence or  mistake,  or  was  fraudulently  or  wrongfully  ob- 
tained, and  suit  might  be  brought  to  vacate  it.* 

§  414.  Manner  of  locating  lodes  within  placers. — 
With  the  exception  of  determining  the  quantity  of  sur- 
face which  may  be  taken  in  conjunction  with  a  lode 
found  witliin  a  placer  claim,  a  question  to  be  presented 
in  the  next  section,  there  is  no  difference  between  the 
manner  of  locating  such  a  lode  and  any  other  found 

T  Mt.  Rosa  M.  M.  &  L.  Co.  v.  Palmer,  26  Colo.  56,  77  Am.  St.  Rep. 
245,  56  Pac.  176,  50  L.  R.  A.  289;  Noyes  v.  Clifford,  37  Mont.  138,  94 
Pac.  842,  844;  Kift  v.  Mason,  42  Mont.  232,  112  Pac.  392,  394;  Washoe 
Copper  Co.  v.  Junila,  43  Mont.  178,  115  Pac.  917,  918,  1  Water  &  Min. 
Cas.  451. 

•  San  Francisco  Mining  Co.,  29  L.  D.  397;  In  re  Tryon,  29  L.  D.  475. 


§  414  LODES  WITHIN  PLACERS.  968 

within  the  public  domain.  It  must  be  discovered  and 
developed,  the  location  must  be  marked  upon  the  sur- 
face, and  all  other  formalities  required  by  federal  or 
state  legislation  must  be  complied  with  to  the  same  ex- 
tent as  in  case  of  lodes  situated  elsewhere.  As  the 
right  necessarily  flows  from  discoverj^  to  perjDetuate 
such  right  the  subsequent  acts  resulting  in  a  perfected 
location  must  be  complied  with. 

As  to  the  surface  lines  inclosing  the  lode,  while  the 
inclosed  area  may  possibly  be  limited,  yet  their  general 
direction  with  reference  to  the  discovered  vein  must 
conform  to  the  general  rule  governing  lode  locations.' 
In  placer  locations,  except  upon  unsurveyed  lands,  and 
under  certain  specified  conditions  to  be  hereafter 
noted, ^°  the  boundaries  must  conform  to  the  public 
surveys,  without  regard  to  the  course  or  direction  of 
veins  which  may  be  found  therein.  Such  boundaries 
perform  a  different  function  from  those  required  in  the 
case  of  lode  claims. 

Whatever  may  be  the  dimensions  of  a  placer  location 
which,  when  participated  in  by  an  association  of  per- 
sons, may  cover  an  area  of  one  hundred  and  sixty 
acres,"  a  lode  location  within  a  placer  cannot  exceed  the 
statutory  limit  as  to  length — that  is,  fifteen  hundred 
feet.  End-lines  must  be  established  within  this  limit, 
and,  in  order  to  acquire  extralateral  rights,  should 
cross  the  located  lode  and  be  parallel  to  each  other.  A 
placer  boundary  may  be  coincident  with  a  lode  bound- 
ary if  so  claimed  and  marked.  But  the  rights  upon  the 
discovered   lode   will    be    defined   only   by    the   lode 

9  Reynolds  t.  Iron  S.  M.  Co.,  116  U.  S.  687,  694,  6  &up.  Ct.  Rep.  601, 
29  L.  ed.  774,  15  Morr.  Min.  Rep.  591. 

10  See  next  chapter. 

11  Rev.  Stats.,  §  2330;  16  Stats,  at  Large,  217;  Comp.  Stats.  1901,  p. 
1432;  5  Fed.  Stats.  Ann.  42. 


969     WIDTH  OF  LODE  LOCATION — PLACER  CLAIMANT.    §  415 

boundaries,  established  and  marked  as  such.  In  this 
respect,  the  statute  makes  no  distinction  between  lodes 
within  placers  and  other  lodes.  In  considering  this 
class  of  lode  location,  the  only  debatable  question  is 
the  quantity  of  surface  which  the  locator  may  appro- 
priate for  the  purpose  of  inclosing  his  lode.  In  all 
other  resiDects  the  general  rules  apply. 

§  415.  Width  of  lode  locations  within  placers. — As 
to  the  amount  of  surface  which  may  be  appropriated  in 
connection  with  a  lode  discovered  within  a  previously 
located  placer  claim,  the  statute  seems  to  be  somewhat 
ambiguous,  and  its  proper  construction  has  been  a 
matter  of  serious  embarrassment  to  the  land  depart- 
ment as  well  as  to  the  courts. 

The  limit  of  the  superficies  of  a  lode  location  on  the 
public  domain  under  the  federal  law  is  fifteen  hundred 
feet  along  the  lode  and  three  hundred  feet  on  each  side 
of  the  middle  of  the  vein. 

The  section  providing  for  the  acquisition  of  title  to 
lodes  within  a  placer  location  is  as  follows: — 

Where  the  same  person,  association,  or  corporation 
is  in  possession  of  a  placer  claim  and  also  a  vein  or 
lode  included  within  the  boundaries  thereof,  applica- 
tion shall  be  made  for  a  patent  for  the  placer  claim 
with  the  statement  that  it  includes  such  vein  or  lode, 
and  in  such  case  a  patent  shall  issue  for  the  placer 
claim  subject  to  the  provisions  of  this  chapter,  in- 
cluding such  vein  or  lode  claim  and  twenty-five  feet 
of  surface  on  each  side  thereof.  The  remainder  of 
the  placer  claim,  or  any  placer  claim  not  embracing 
any  vein  or  lode  claim,  shall  be  paid  for  at  the  rate  of 
two  dollars  and  fifty  cents  per  acre,^^  together  with 

12  For  reasons  making  the  price  of  the  area  within  the  lode  claims 
five  dollars  per  acre,  and  with  placer  claims  two  dollars  and  fifty  cents  per 
acre,  see  Clipper  M.  Co.  v.  Eli  M.  &  L.  Co.,  194  U.  S.  220,  228,  24  Sup.  Ct. 
Kep.  632,  48  L.  ed.  944. 


§  415  LODES  WITHIN  PLACERS.  970 

all  costs  of  proceedings;  and  where  a  vein  or  lode 
such  as  is  described  in  section  twenty-three  hundred 
and  twenty,  is  known  to  exist  within  the  boundaries 
of  a  placer  claim,  an  application  for  a  patent  for  such 
placer  claim  which  does  not  include  an  application 
for  the  vein  or  lode  claim  shall  be  construed  as  a  con- 
clusive declaration  that  the  claimant  of  a  placer 
claim  has  no  right  of  possession  of  the  vein  or  lode 
claim;  but  where  the  existence  of  a  vein  or  lode  in  a 
placer  claim  is  not  known,  a  patent  for  the  placer 
claim  shall  convey  all  valuable  mineral  and  other 
deposits  within  the  boundaries  thereof." 

The  question  presents  itself  in  two  aspects: — 

(1)  Where  the  lode  is  located  and  claimed  by  the 
placer  claimant; 

(2)  Where  it  is  located  and  claimed  by  strangers  to 
the  placer  title. 

As  to  the  placer  claimant,  there  is  no  logical  or  eco- 
nomic reason  why  he  should  not  be  permitted  to  select 
as  much  of  the  surface  inclosing  the  lode  as  the  law 
will  permit  in  case  of  other  lode  locations;  that  is, 
within  the  limit  of  fifteen  hundred  by  six  hundred  feet, 
in  the  absence  of  state  laws  or  local  regulations  restrict- 
ing the  right  to  less.  There  is  no  requirement  that 
land  contiguous  to  the  lode,  and  appropriated  with  it, 
should  be  nonmineral  in  character.  As  he  owns  the 
surface  of  the  placer,  except  as  against  a  lode  locator, 
no  one  can  complain  if  the  placer  claimant  takes  any 
quantity  within  the  prescribed  limit.  His  taking  more 
than  the  twenty-five  feet  would  simply  operate  as  an 
abandonment  pro  tanto  of  the  placer  claim.  But  he  is 
required  to  take  at  least  twenty-five  feet  on  each  side 
of  the  center  of  the  vein,  and  pay  therefor  at  the  rate 

13  Rev.  stats.,  §2333;  17  Stats,  at  Large,  94;  Comp.  Stats.  1901,  p. 
1433;  5  Fed.  Stats.  Ann.  45. 


971  WIDTH  OF  LODE  LOCATION — PLACER  CLAIMANT.         §  415 

of  five  dollars  per  acre.  The  remainder  he  may  enter 
as  placer  ground  at  half  that  rate. 

But  let  us  assume  a  case  of  a  lode  discovered  within  a 
prior  placer  claim  by  a  stranger  to  the  placer  title,  such 
discovery  antedating  the  application  for  a  placer  pat- 
ent. That  such  lode  may  be  located  and  claimed  by  the 
discoverer  seems  to  be  well  settled.  But  the  extent  of 
surface  to  which  such  locator  may  be  entitled,  with  due 
regard  to  the  rights  of  the  prior  placer  claimant,  is  the 
subject  of  debate.  The  question  assumes  this  form: 
What  is  in  contemplation  of  law  reserved  out  of  a 
placer  location  1  or.  To  what  extent  is  the  surface  of  a 
prior  placer  location  subject  to  invasion  and  diminu- 
tion by  a  subsequent  discoverer  of  a  lode  within  the 
placer  boundaries? 

The  question  may  be  answered  in  one  of  four  ways : — 

(1)  Either  the  lode  locator  is  entitled  to  the  full 
width  allowed  to  other  lode  locations,  or 

(2)  He  is  allowed  twenty-five  feet  on  each  side  of  the 
lode,  or 

(3)  He  is  allowed  no  surface,  or 

(4)  He  may  take  only  such  surface  as  may  be  rea- 
sonably necessary  for  the  enjoyment  of  the  lode. 

The  supreme  court  of  the  United  States  held,  in 
Noyes  v.  Mantle,^*  that  a  placer  patent  reserv^es  a  lode 
claim,  located  prior  to  the  application  for  patent,  to  its 
full  extent;  but  in  that  case,  although  the  decision  as 
reported  is  silent  as  to  the  date  of  the  placer  location,  it 
is  quite  manifest  that  the  lode  was  discovered  and  loca- 
ted prior  to  the  location  of  the  placer."  Such  prior 
location  withdraws  the  area  covered,  and  the  subse- 

1*  127  U.  S.  348,  354,  8  Sup.  Ct.  Rep.  1132,  32  L.  ed.  168,  15  Morr. 
Min.  Rep.  611. 

15  The  record  in  this  case,  as  filed,  discloses  the  fact  that  the  lode 
was  located  in  April,  and  the  olacer  t^e  following  October. 


§  415  LODES  WITHIN  PLACERS.  972 

quent  placer  locator  could,  of  course,  obtain  no  rights 
as  against  tlie  lode  locator.  This  is  not  the  case  we 
have  assumed.  If,  in  the  Noyes-Mantle  case,  the  lode 
location  in  controversy  had  been  the  junior  in  date,  we 
might  infer  from  the  decision  that  the  subsequent  lode 
locator  was  authorized  to  select,  within  the  boundaries 
of  the  placer,  a  full  surface  claim.  But  as  heretofore 
indicated,  the  lode  location  in  that  case  antedated  not 
only  the  application  for  placer  patent,  but  the  location 
of  the  placer. 

When  we  examine  the  rulings  of  the  land  depart- 
ment, we  find  that  they  are  not  uniform. 

Originally,  that  department  held  that  the  claimant  of 
a  lode  within  placer  limits  could  only  assert  the  right, 
as  against  a  placer  patentee,  to  twenty-five  feet  on  each^ 
side  of  the  center  of  the  vein.  If  he  sought  to  claim 
more,  he  could  only  protect  his  right  to  the  increased 
area  by  adversing  the  placer  applicant.  Failing  to  do 
so,  he  was  limited  to  a  width  of  fifty  feet.'" 

This  was  before  the  decision  in  Noyes  v.  Mantle 
{supra).  Subsequent  to  this  decision,  the  department 
reached  the  following  conclusions,  after  quoting  from 
the  cases  of  Noyes  v.  Mantle  and  Eeynolds  v.  Iron  S. 
M.  Co.:"— 

It  thus  appears  that  the  limitation  of  the  width  of 
the  claim  in  section  twenty-three  hundred  and  thirty- 
three,  Revised  Statutes,  is  only  applicable  where  the 
same  claimant  seeks  a  patent  for  a  vein,  or  lode,  in- 
cluded within  the  boundaries  of  his  placer  claim,  and 
has  no  application  to  a  lode  claim  properly  perfected 
by  another,  prior  to  the  date  of  the  application  for 
patent  for  placer  claim,  whose  boundaries  include  the 

16  Shonbar  Lode,  1  L.  D.  551;  Id.,  3  L.  D.  388. 

17  116  U.  S.  687,  698,  6  Sup.  Ct.  Eep.  601,  29  L.  ed.  774,  15  Morr. 
Min.  Rep.  591;  second  appeal,  124  U.  S.  374,  8  Sup.  Ct.  Eep.  598,  31 
L.  ed.  466. 


973  WIDTH  OF  LODE  LOCATION PLACER   CLAIMANT.         §  415 

lode  claim.  If,  therefore,  it  shall  appear  from  the 
record  that  there  is  a  lode  claim  within  the  bonnd- 
aries  of  a  placer  claim,  then  that  lode  claim  in  its  full 
extent  should  be  excepted  from  the  placer  patent." 

But  in  this  case  the  department  declined  to  patent 
the  lode  claim  at  all,  for  the  reason  that  its  jurisdiction 
had  been  exhausted  by  the  issuance  of  the  placer  pat- 
ent— a  ruling  which,  as  heretofore  noted, ^'  was  subse- 
quently changed.  A  later  expression  of  opinion  by  the 
land  department  upon  the  subject  under  consideration 
is  found  in  a  decision  by  Secretary  Smith  in  the  case 
of  the  Aurora  Lode  v.  The  Bulger  Hill  and  Nuggett 
Gulch  Placer.'" 

In  this  case,  the  placer  claims  were  first  located,  the 
Bulger  Hill  on  March  19th,  and  the  Nuggett  Gulch  on 
April  6,  1881.  The  Aurora  lode  was  located  April  9th 
of  the  same  year.  The  properties  had  been  in  litiga- 
tion, arising  out  of  patent  proceedings,  the  Aurora  lode 
claimant  having  applied  for  a  patent,  which  was  ad- 
versed  by  the  placer  claimant,  the  judgment  being  in 
favor  of  the  latter.'^ 

Notwithstanding  this,  the  land  department  enter- 
tained the  protest  of  the  lode  claimant  against  the  issu- 
ance of  a  patent  to  the  placer  claimant,  and  after 
discussing  the  effect  of  the  judgment  of  the  court,  and 
the  relative  rights  of  the  two  classes  of  claimants,  the 
secretary  of  the  interior  thus  expresses  his  views : — 

The  only  question  which  presents  any  serious  diffi- 
culty to  my  mind  relates  to  the  extent  of  surface  area 
the  lode  claimant  will  be  entitled  to  in  the  event  he 
sustains,  by  proof  in  the  regular  way,  the  allegations 

18  Pike's  Peak  Lode,  10  L.  D.  200,  203. 

19  §  413. 

20  23  L.  D.  95,  348. 

21  Bennett  v.  Harkrader,  158  U.  S.  441,  15  Sup.  Ct.  Rep.  863,  39 
L.  ed.  1046. 


§  415  LODES  WITHIN  PLACERS.  974 

of  his  protest.  His  claim  as  originally  located  ap- 
pears to  be  something  over  five  hundred  feet  in  width 
at  the  points  of  conflict  with  the  placer  locations. 
The  extensive  and  valuable  improvements  erected 
upon  the  claim  are  alleged  to  be  upon  that  part 
within  the  overlap.  The  surface  ground  being,  how- 
ever, only  an  incident  to  the  lode,  and  not  a  part  of  it, 
I  am  of  the  opinion,  that  under  the  judgment  of  the 
court,  the  placer  claimant  is  entitled  to  the  surface 
area  within  the  overlap,  except  so  much  thereof  as  is 
necessary  to  the  occupation,  use,  operation,  and  en- 
joyment of  the  lode  claim  by  its  owners.  This  may 
be  more  or  less,  according  to  the  extent  and  location 
of  the  present  improvement,  if  any,  and  other  condi- 
tions peculiar  to  this  particular  claim.  I  know  of  no 
established  precedent  controlling  in  such  a  case  as 
this,  but  in  view  of  the  superior  right  of  the  placer^ 
claimant  to  the  surface  area  as  established  by  prior' 
location  and  by  the  judgment  of  the  court  in  the  ad- 
verse proceedings,  I  do  not  think  that  the  superior 
right  of  the  lode  claimant  to  the  possession  of  his 
lode,  if  its  discovery,  location,  and  known  existence 
be  true,  as  alleged,  should  be  allowed  to  carry  with  it 
more  surface  ground  within  the  overlap  than  is 
necessary  for  the  occupation,  use,  operation,  and  full 
enjoyment  thereof.  Having  been  defeated  in  the  ad- 
verse proceedings  in  the  court,  it  would  appear  to  be 
but  just  and  right  that  the  lode  claimant  should  be 
thus  restricted  as  touching  the  surface  area  of  his 
claim,  and,  indeed,  such  seems  to  be  necessary  in 
order  to  give  effect  to  the  court's  judgment. 

Without  stopping  to  consider  the  binding  effect  of 
the  judgment  in  the  adverse  proceedings  as  an  estoppel 
upon  the  lode  claimant,  we  think  that  the  ruling  of  the 
secretary  proceeds  upon  considerations  of  an  equitable 
nature,  rather  than  upon  anything  deducible  from  the 
mining  laws.  If  we  assume  that  nothing  is  reserved 
out  of  the  placer  location  but  the  lode  itself,  we  practi- 
cally concede  that  the  reservation  is  of  no  substantial 


975     WIDTH  OF  LODE  LOCATION — PLACER  CLAIMANT.    §  415 

benefit  to  anyone,  as  the  right  to  enjoy  it  would  bo 
practically  denied.  The  placer  locator  would  hold 
everything,  except  the  ledge  bounded  by  its  inclosing 
walls,  and  no  right  of  entry  over  or  through  the  placer 
ground  would  be  permitted."  Or,  at  the  utmost,  the 
lode  claimant  would  only  be  entitled  to  an  easement 
over  the  placer  ground,  upon  the  principle  that  a  reser- 
vation of  a  thing  out  of  a  grant  is  a  reservation  of 
whatever  may  be  necessary  to  its  enjoyment. 

But  the  mining  laws  contemplate  no  such  conditions. 
The  only  method  by  which  the  lode  may  be  located  is 
by  defining  a  surface  inclosing  it.'^ 

Since  the  department  rendered  its  decision  in  the 
case  of  the  Aurora  Lode  v.  The  Bulger  Hill  and  Nug- 
gett  Gulch  Placer  (supra),  the  question  has  been  re- 
ferred to  in  several  cases.^* 

In  the  case  of  the  North  Star  lode,"  Acting  Secretary 
Kyan  said : — 

The  difficulties  in  reaching  a  correct  solution  of 
this  question  are  such  that  the  department  believes 
it  better  to  withhold  a  decision  thereof  until  a  case  is 
reached  wherein  the  opposing  views  and  arguments 
are  fully  presented,  so  that  the  decision  may  be  based 
upon  full  consideration  thereof. 

The  last  expression  of  opinion  by  the  secretary  will 
be  noted  after  stating  the  conclusions  reached  by  the 
courts. 

So  far  as  the  decisions  of  the  courts  are  concerned, 
we  have  noted  but  one  reported  case  which  analyzes 
the  statute  and  announces  a  definite  solution  of  the 
question.     We  refer  to  a  decision  participated  in  by  a 

22  Dower  v.  Richards,  73  Cal.  477,  480,  15  Pac.  105,  107. 

23  Ante,  §§  71,  361. 

24  Elda  M.  &  M.  Co.  v.  Mayflower  G.  M.  Co.,  26  L.  D.  573;  Cape  May 
M.  &  L.  Co.  V.  Wallace,  27  L.  D.  676. 

28  28  L.  D.  41,  44. 


§  415  LODES  WITHIN  PLACERS.  976 

majority  of  the  supreme  court  of  Colorado  in  the  case 
of  Mt.  Eosa  Mining  and  Milling  and  Land  Co.  v.  Pal- 
mer.^® We  quote  so  much  thereof  as  is  necessary  to 
show  the  conclusion  reached  and  the  reasoning  on 
which  it  was  based : — 

The  question  was  also  involved  upon  the  trial  of 
the  case  of  Campbell  v.  Iron  S.  M.  Co.,  in  the  circuit 
court  of  the  United  States,  for  this  district,  Judge 
Einer  presiding.     He  entertained  the  view,  and  in- 
structed the  jury  to  the  effect,  that  a  lode  claimant, 
in  case  of  a  recovery,  was  entitled  to  no  more  than 
the  vein  or  lode,  and  fifty  feet  of  ground,  extending 
fifteen  hundred  feet  in  length.     We  think  this  in- 
struction correctly  defines   the  amount  of  surface 
ground  to  which  a  lode  located  within  the  boundaries 
of  a  placer  is  entitled,  under  the  provisions  of  section 
twenty-three  hundred  and  thirty- three.     As  was  said 
in  Eeynolds  v.  Iron  S.  M.  Co.  (supra) :  "This  section 
made  provision  for  three  distinct  classes  of  cases: 
(1.)  When  the  applicant  for  a  placer  patent  is  at 
the  time  in  possession   of   a   vein   or  lode  included 
within  the  boundaries  of  his  placer  claim  he  shall 
state  that  fact,  and,  on  payment  of  the  sum  required 
for  a  vein  claim  and  twenty-five  feet  on  each  side  of 
it,  at  five  dollars  per  acre,  and  two  dollars  and  fifty 
cents  for  the  remainder  of  the  placer  claim,  his  pat- 
ent shall  cover  both.     (2.)  It  enacted  that,  where  no 
such  vein  or  lode  is  known  to  exist  at  the  time  the 
patent  is  applied  for,  the  patent  for  a  placer  claim 
shall  carry  all  valuable  mineral  and  other  deposits 
which  may  be  found  within  the  boundaries  thereof. 
(3.)  But,  in  case  where  the  applicant  for  the  placer 
is  not  in  possession  of  such  lode  or  vein  within  the 
boundaries  of  his  claim,  but  such  vein  is  known  to 
exist,  and  it  is  not  referred  to  or  mentioned  in  the 
claim  or  patent,  then  the  application  shall  be  con- 
strued as  a  conclusive  declaration  that  the  claimant 
of  the  placer  mine  has  no  right  to  the  possession  of 

26  26  Colo.  56,  77  Am.  St.  Rep.  245,  56  Pac.  176,  50  L.  R.  A.  289. 


977     WIDTH  OF  LODE  LOCATION — PLACER  CLAIMANT.    §  415 

the  vein  or  lode  claim."  We  think  it  is  manifest  that 
the  lode  or  vein  referred  to  in  the  first  and  third  pro- 
visions is  the  same  thing,  and  that  whatever  a  placer 
claimant  would  acquire  by  availing  himself  of  the 
privilege  accorded  him  by  the  first  provision  of  the 
section,  is  reserved  by  virtue  of  the  third  provision; 
in  other  words,  that  the  same  extent  of  surface 
ground  that  is  incident  to  such  lode  or  vein,  if  loca- 
ted and  patented  by  the  placer  claimant,  is  reserved 
from  the  placer  patent  in  case  of  his  failure  to 
claim  and  patent  the  same.  If  he  elects  to  patent 
the  lode,  he  is  required  to  take  twenty-five  feet  on 
each  side  of  the  center  of  the  vein,  and  pay  therefor 
at  the  rate  of  five  dollars  per  acre.  This  is  a  privi- 
lege accorded  to  him,  which  he  may  avail  himself  of, 
or  not,  as  he  sees  fit.  If  he  elects  to  waive  this 
privilege,  he  may  do  so  in  one  of  two  ways — either 
by  expressly  excepting  the  lode  from  his  placer  loca- 
tion and  application  for  patent,  or  remaining  silent 
in  regard  to  it.  If  silent,  then  by  implication  he  de- 
clares that  he  makes  no  claim  to  such  lode  and  by 
such  silence  is  bound  to  the  same  extent,  and  in  the 
same  manner,  but  no  further,  than  he  would  have 
been  by  an  express  declaration.  By  electing  to  make 
no  claim  to  a  known  lode,  or  express  declaration  in 
regard  to  it,  he  must  be  understood  as  claiming,  for 
placer  purposes,  the  greatest  possible  area  within  the 
boundaries  of  his  placer  claim  and  should  be  held 
to  have  relinquished  only  that  which  he  might  have 
taken,  which  is  the  lode,  with  the  amount  of  surface 
ground  provided.  Why  should  there  be  any  differ- 
ence between  the  rights  of  claimants  of  known  lodes 
within  the  boundaries  of  a  placer?  We  know  of 
none.  The  object  of  excepting  known  lodes  from 
placer  locations  was  to  prevent  titles  to  such  lodes 
being  obtained  under  the  guise  of  a  placer;  at  the 
same  time,  in  order  to  protect  claimants  to  each  char- 
acter of  mineral  locations  to  the  greatest  extent,  and 
preserve  to  each  that  which  was  most  valuable  for 
particular  purposes  in  connection  with  each  class  of 

Lindley  on  M. — 62 


§  415  LODES  WITHIN  PLACERS.  978 

claims.  Tlie  lode,  for  convenient  working,  could  not 
be  limited  to  less  than  twenty-five  feet  on  each  side 
of  the  center  of  the  vein ;  and  the  placer,  which  would 
be  valueless  without  such  surface  rights,  is  permitted 
to  take  title  to  the  remaining  area  accordingly. 
Those  who  controvert  this  view  base  their  contention 
upon  the  provisions  of  section  twenty-three  hundred 
and  twenty,  which  it  is  said  governs  the  length  and 
width  of  all  lode  claims,  whether  made  within  the 
boundaries  of  a  placer  claim  or  not.  An  act  on  a 
particular  subject  must  be  construed  as  a  whole. 
Section  twenty-three  hundred  and  twenty  refers  to 
the  location  of  lodes  not  conflicting  with  any  other 
class  of  mineral  locations;  while  by  section  twenty- 
three  hundred  and  thirty-three  special  conditions 
with  reference  to  conflicts  between  the  two  classes  of 
mineral  claims  are  specially  provided  for;  and,  to 
that  extent,  construing  the  act  as  a  whole,  is  a  limi- 
tation or  qualification  of  the  provisions  of  section 
twenty-three  hundred  and  twenty,  which  relates,  as 
stated,  to  the  width  of  lode  claims  generally,  and 
regulates  the  width  of  lode  claims  when  made  upon 
lodes  within  the  boundaries  of  a  placer,  whether  such 
lodes  are  located  by  the  owner  of  the  placer  or  stran- 
gers  to  that  title.  By  this  construction  full  force 
and  effect  is  given  to  both  of  these  sections,  and  the 
purpose  of  the  statute  is  carried  out.  The  govern- 
ment receives  for  its  mineral  lands  the  price  fixed  for 
lodes  and  placers,  respectively,  and  the  superior 
right  to  the  surface  area  of  the  placer  claimant, 
acquired  by  his  prior  location  or  patent,  is  protected. 
It  is  the  conclusion  of  a  majority  of  the  court  that  the 
limitation  of  the  width  of  a  lode  claim  in  section 
twenty-three  hundred  and  thirty-three  is  not  only 
applicable  to  the  placer  claimant,  but  applies  as  well 
to  others  who  locate  a  lode  within  the  boundaries  of 
his  previously  located  placer.  Chief  Justice  Camp- 
bell declines  to  express  an  opinion  upon  this  ques- 
tion, because,  in  his  judgment,  the  stipulation  entered 
into  by  counsel    eliminates    it   from    the    case.    It 


979     WIDTH  OF  LODE  LOCATION — PLACER  CLAIMANT.    §  415 

follows  that  the  court  below  erred  in  adjudging  to 
appellee  surface  ground  in  excess  of  twenty-five  feet 
on  each  side  of  the  lodes  in  question.  For  this 
reason,  the  judgment  is  reversed,  and  the  case  re- 
manded, with  directions  to  enter  judgment  in 
accordance  with  the  views  we  have  expressed." 

This  principle  is  recognized  by  the  supreme  court  of 
Montana.-^  In  the  case  of  Clipper  M.  Co.  v.  Eli  M.  & 
L.  Co.'®  the  supreme  court  of  the  United  States  says 
somewhat  guardedly  that  the  lode  claimants  would  be 
entitled  to  at  least  twenty-five  feet  on  each  side  of  the 
middle  of  the  vein. 

The  views  thus  entertained  by  the  supreme  court  of 
Colorado  have  recently  received  the  approval  of  the 
secretary  of  the  interior  in  a  communication  addressed 
by  him  to  the  attorney-general.^"  This  communication 
requested  that  proceedings  be  instituted  in  behalf  of 
the  United  States  to  cancel  a  patent  issued  for  a  lode 
claim  within  a  prior  located  placer,  upon  the  ground, 
among  others,  that  a  surface  covering  a  width  of  three 
hundred  feet  had  been  patented,  whereas  the  surface 
width  should  have  been  limited  to  twenty-five  feet  on 
each  side  of  the  center  of  the  vein.  The  secretary  calls 
the  attorney-general's  attention  to  the  views  of  the 
department  as  previously  expressed  in  the  cases  here- 
tofore commented  on,  and  then  gives  his  unqualified 
sanction  to  the  doctrine  announced  by  the  supreme 
court  of  Colorado,  in  the  following  language: — 

This  decision,  coming  from  the  court  of  last  resort 
of  one  of  the  principal  mining  states,  is  entitled  to 
grave  weight,  and  upon  careful  consideration  of  the 

27  Mt.  Rosa  M.  M.  &  L.  Co.  v.  Palmer,  26  Colo.  56,  63,  77  Am.  St. 
Rep.  245,  56  Pac.  176,  178,  50  L.  R.  A.  289. 

28  Noyes  v.  Clifford,  37  Mont.  138,  94  Pac.  842,  848. 

29  194  U.  S.  220,  231,  24  Sup.  Ct.  Rep.  632,  48  L.  ed.  944. 

30  April  1,   1902,  not  reported. 


§  415  I/)DES  WITHIN  PLACERS.  980 

reasons  assigned  for  the  conclusions  reached,  the 
department  is  of  the  opinion  that  the  interpretation 
given  the  statute  in  said  decision  is  correct. 

This  opinion  was  referred  to  and  followed  by  the 
secretary  of  the  interior  in  the  case  of  Daphne  Lode 

Claim.^^ 

With  this  consensus  of  opinion  of  the  courts  and  the 
land  department  the  rule  may  be  considered  as  practi- 
cally settled. 

31  32  L.  D.  513,  in  wliicli  the  secretary  comments  on  the  author's 
views  as  expressed  in  the  second  edition. 


CHAPTER  III. 

PLACERS  AND  OTHER  FORMS  OF  DEPOSIT  NOT  "IN  PLACE." 

Abticle  I.     Character  of  Deposits  Subject  to  Appropriation  Under 
Laws  Applicable  to  Placers. 
II.    The  Location  and  Its  Requirements. 

III.  The  Discovery. 

IV.  State  Legislation  as  to  Posting  Notices  and  Prelim- 

inary Development  Work. 
V.    The  Surface  Covered  by  the  Location — Its  Form  and 
Extent. 
VI.     The  Marking  of  the  Location  on  the  Ground. 
VII.     The  Location  Certificate  and  Its  Record. 
VIII.    Conclusion. 


Aeticle  I.  Chaeacter  of  Deposits  Subject  to 
Appropriation  Under  Laws  Applicable  to 
Placers. 


§  419. 
§  419a. 


§  420. 


§  421. 


§  422. 


The  general  rule. 

Conservation  measures  and 
withdrawal  orders  as 
affecting  placer  loca- 
tions. 

Specific  substances  classi- 
fied as  subject  to  entry 
under    the    placer    laws. 

Building-stone  and  stone 
of  special  commercial 
value. 

Petroleum. 


§  423.     Natural  gas. 
§  424.     Brick  clay. 
§  425.     Phosphatic  deposits. 
§  425a.  Manner  of  locating  phoB- 
phate  deposits. 
Potash. 
Tailings. 

Subterranean     gravel     de- 
posits  in  ancient   river- 
beds. 
Beds  of  streams. 
Lands  imder  tide  waters. 


§  425b 
§  426. 
§  427. 


§  428 
§  429 


§  419.  The  general  rule. — In  a  preceding  chapter/ 
in  determining  what  constitutes  "mineral  land,"  which 
as  such  is  susceptible  of  appropriation  under  the  min- 
ing laws,  we  have  to  some  extent  anticipated  much  that 
might  be  properly  said  in  defining  the  character  of  de- 


1  Ante,  §§  85-98. 


(981) 


§  419         DEPOSITS   APPROPRIATEa>    UNDER  PLACER   LAWS.  982 

posits  which  are  subject  to  appropriation  under  the 
laws  applicable  to  placers,  and  we  have  there  endeav- 
ored^ to  formulate  general  rules  by  which  the  mineral 
character  of  substances  is  to  be  established.  In  con- 
formity with  these  rules,  land  of  the  public  domain  may 
be  entered  under  the  laws  applicable  to  placers  when  it 
is  shown  to  have  upon  or  within  it  such  a  substance  as 
falls  within  the  classification  named  in  section  ninety- 
eight,  if  such  substance  is  found  in  the  form  of  super- 
ficial or  other  deposits  not  in  place.  If  a  discovered 
deposit  satisfies  the  law  as  to  its  mineral  character, 
and  it  is  not  found  in  veins  of  quartz,  or  other  rock  in 
place,  it  may  be  appropriated  under  the  laws  applicable 
to  placers.  It  is  the  mode  of  occurrence,  whether  in 
place  or  not  in  place,  which  determines  the  manner  in 
which  it  should  be  located.'  What  constitutes  ''rock 
in  place"  has  been  fully  discussed.* 

We  say  that  all  fonns  of  deposit,  other  than  those 
occurring  in  veins  of  rock  in  place,  must  be  appro- 
priated under  the  laws  applicable  to  placers,  for  the 
reason  that  placers  present,  in  popular  estimation,  the 
highest  type  of  deposits  which  do  not  occur  in  veins 
of  rock  in  place,  and  are  the  only  class  of  such  deposits 
as  are  individualized  and  specially  named  in  the 
statute.^ 

The  right  to  acquire  title  to  "claims  usually  called 
placers ' '  was  granted  for  the  first  time  by  the  mining 
act  of  July  9,  1870." 

2  Ante,  §  98. 

3  Webb  V,  American  Asphaltum  M.  Co.,  157  Fed.  203,  205,  84  C.  C.  A. 
651;  Utah  Onyx  Development  Co.,  38  L.  D.  504. 

4  Ante,  §§   29-9-301. 

B  Rev.  Stats.,  §  2329;  Comp.  Stats.  1901,  p.  1432;  5  Fed.  Stats.  Ann. 
42. 

6  16  Stats,  at  Large,  p.  217;  Comp.  Stats.  1901,  p.  1432;  5  Fed.  Stats. 
Ann.  42. 


9'83  WHAT  ARE  PLACERS.  §  419 

This  has  always  been  familiarly  called  the  "placer 
law,"  in  contradiction  to  the  "lode  law"  of  July  26, 
1866.  The  subsequent  legislation  preserv^ed  the  dis- 
tinction, so  that,  colloquially  speaking,  mineral  depos- 
its are  to  be  treated  either  as  lodes  or  placers.  In  time, 
placer,  which  was  the  name  given  by  the  Spaniards  to 
the  auriferous  gravels  of  America,^  bas  become  a  gen- 
eric teiTii,  in  which  all  forms  of  deposit,  other  than 
those  occurring  in  veins,  are  popularly  included. 

Dr.  Raj^mond,  in  his  "Glossary  of  Mining  and  Metal- 
lurgical Terms,  "^  defines  the  word  placer  as  a  deposit 
of  valuable  mineral  found  in  particles  in  alluvium,  or 
diluvium^  or  beds  of  streams,  and  enumerates  gold, 
tin  ore,  chromic  iron,  iron  ore,  and  precious  stones,  as 
being  found  in  placers.  He  adds  to  the  definition  the 
statement  that,  by  the  United  States  statutes,  all  depos- 
its not  classed  as  veins  of  rock  in  place  are  considered 
placers. 

As  was  said  by  the  supreme  court  of  the  United 
States,  in  distinguishing  the  two  classes  of  deposits : — 

Placer  mines,  though  said  by  the  statute  to  include 
all  other  deposits  of  mineral  matter,  are  those  in 
which  this  mineral  is  generally  found  in  the  softer 
material  which  covers  the  earth's  surface,  and  not 
among  the  rocks  beneath.^ 

Assuming  that  our  definition  of  "mineral,"  outlined 
in  a  previous  chapter,"  is  based  upon  a  correct  inter- 
pretation of  the  law,  there  should  be  but  little  difficulty 
in  determining  whether  land  containing  a  given  sub- 
stance not  in  place  is  subject  to  entrj'  under  the  placer 

1  Moxon  V.  Wilkinson,  2  Mont.  421,  12  Morr.  Min.  Rep.  602. 

8  Trans.  Am.  Inst.  M.  E.,  vol.  ix,  p.  164. 

9  Reynolds  v.  Iron  S.  M.  Co.,  116  U.  S.  687,  695,  6  Sup.  Ct.  Rep.  601, 
29  L.  ed.  774,  15  Morr.  Min.  Rep.  591. 

10  Ante,  §§  85-98. 


§  419    DEPOSITS  APPROPRIATED  UNDER  PLACER  LAWS.     984 

laws  or  not.  The  element  of  commercial  value,  its  sus- 
ceptibility of  being  extracted  and  marketed  at  a  profit, 
and  not  its  metallic  or  chemical  character,"  are  the 
controlling  factors  in  determining  the  question." 

This  is  clearly  shown,  not  only  by  the  evolution  of 
denotation,  illustrated  in  the  history  of  English  juris- 
prudence and  the  decisions  of  the  American  courts,  but 
by  a  long  line  of  departmental  rulings,  uniform,  except 
as  to  certain  specific  substances.  As  was  said  by  the 
supreme  court  of  the  United  States : — 

The  construction  given  to  a  statute  by  those 
charged  with  the  duty  of  executing  it,  is  always  en- 
titled to  the  most  respectful  consideration,  and  ought 
not  to  be  overruled  without  cogent  reasons." 

While  this  element  of  profit,  or  commercial  value,  has  , 
generally  pervaded  the  rulings  of  the  land  department, 

11  Ante,  §  323. 

12  Pacific  Coast  Marble  Co.  v.  N.  P.  R.  R.  Co.,  25  L.  D.  233;  Aldritt 
V.  Northern  Pac.  R.  R.  Co.,  25  L.  D.  349;  Phifer  v.  Heaton,  27  L.  D.  57; 
McQuiddy  v.  State  of  California,  29  L.  D.  181. 

13  Post,  §  666 ;  United  States  v.  Moore,  95  U.  S.  760,  763,  24  L.  ed. 
58S;  Hastings  &  Dakota  R.  R.  v.  Whitney,  132  U.  S.  357,  366,  10  Sup. 
Ct.  Rep.  112,  33  L.  ed.  363;  Hahn  v.  United  States,  107  U.  S.  402,  406, 
2  Sup.  Ct.  Rep.  494,  27  L.  ed.  527;  Brown  v.  United  States,  113  U.  S. 
568,  571,  5  Sup.  Ct.  Rep.  648,  28  L.  ed.  1079;  Doe  v.  Waterloo  M.  Co., 
70  Fed.  455,  463,  17  C.  C.  A.  190,  82  Fed.  45,  50,  27  C.  C.  A.  50,  19  Morr. 
Min.  Rep.  1 ;  Calhoun  G.  M.  Co.  v.  Ajax  G.  M.  Co.,  27  Colo.  1,  83  Am.  St. 
Rep.  17,  59  Pac.  607,  616,  50  L.  R.  A.  209;  McFadden  v.  Mountain  View 
M.  &  M.  Co.,  97  Fed.  670,  677,  38  C.  C.  A.  354 ;  Hawley  v.  Diller,  178 
U.  S.  476,  488,  20  Sup.  Ct.  Rep.  986,  44  L.  ed.  1157;  Hewitt  v.  Schultz, 
180  U.  S.  139,  157,  21  Sup.  Ct.  Rep.  309,  45  L.  ed.  463;  United  States 
V.  Southern  Pac.  R.  R.,  184  U.  S.  49,  60,  22  Sup.  Ct.  Rep.  285,  46  L.  ed. 
425;  Fairbank  v.  United  States,  181  U.  S.  283,  308,  21  Sup.  Ct.  Rep.  648, 
45  L.  ed.  862;  McMichael  v.  Murphy,  197  U.  S.  304,  312,  25  Sup.  Ct. 
Rep.  460,  49  L.  ed.  766. 

This  rule  is  said  not  to  be  an  arbitrary  one  and  is  only  to  be  invoked 
when  the  language  of  the  statute  is  ambiguous  and  susceptible  of  two 
constructions  or  two  reasonable  interpretations.  Houghton  v.  Payne,  194 
U.  S.  88,  100,  24  Sup.  Ct.  Rep.  490,  48  L.  ed.  888.  See,  also,  Hemmer 
T.  United  States,  204  Fed.  898,  904,  905. 


985  CONSERVATION   MEASURES.  §  419a 

we  find  that  in  dealing  witli  certain  specific  sul^stances, 
either  by  reason  of  their  commonplace  character,  or  the 
other  extreme,  their  unique  and  peculiar  properties,  the 
department  has  lost  sight  of  this  controlling  factor,  and 
leaned  toward  strict  and  frequently,  we  think,  strained 
rules  of  construction.  Owing  to  the  infinite  variety  in 
nature,  the  application  to  individual  instances  of  gen- 
eral laws  framed  and  construed  on  broad  theories  may 
seem  to  produce  absurd  results.  But  this  in  no  sense 
proves  that  the  law  or  the  general  rule  of  construction 
is  absurd.  We  cannot  conceive  of  any  class  of  deposits 
of  the  general  character  under  consideration  which 
may  not  fairly  be  tested  by  the  general  rules  announced 
in  section  ninety-eight. 

That  the  true  position  of  the  land  department  upon 
this  subject  may  be  fairly  presented,  it  is  necessary  to 
consider  its  rulings  as  to  specific  substances. 

§  419a.  Conservation  measures  and  withdrawal 
orders  as  affecting  placer  locations. — We  have  hereto- 
fore discussed  the  proposed  national  conservation 
measures,"  the  executive  withdrawals  of  lands  sup- 
posed to  contain  petroleum,  natural  gas,  phosphates 
and  coal,  in  the  absence  of  express  legislation  of  con- 
gress,^^  and  the  subsequent  acts  authorizing  with- 
drawals for  classification  and  other  purposes,  and  have 
noted  that  the  withdrawal  areas  are  now  closed  to  the 
miner  and  prospector  in  search  of  the  nonmetalliferous 
minerals,  so  long  as  the  withdrawals  are  in  force." 
The  original  act  authorizing  these  withdrawals^^  per- 
mitted  exploration,   discovery,   occupation,   and   pur- 

1*  Ante,  §  200. 
15  Ante,  §§  200a,  200b. 
iG  Ante,  §  200c. 

IT  June  25,  1910,  36  Stats,  at  Large,  p.  847;  Comp.  Stats.  (Supp. 
1011),  p.  593;  1  Fed.  Stats.  Ann.  (Supp.  1912),  p.  321. 


§  419a      deposits  appropriated  under  placer  laws.         986 

chase  of  lands  containing  mineral  other  than  coal,  oil, 
natural  gas  and  phosphates  found  within  the  withdrawn 
areas.  Subsequently,  through  the  investigations  of 
the  geological  survey,  it  was  thought  probable  that 
deposits  of  potash  and  nitrates  existed  in  commercial 
quantities  on  the  public  domain.  These  two  commodi- 
ties not  being  enumerated  in  the  act,  the  president  by 
special  message  to  congress  March  26,  1912,  urged  the 
immediate  passage  of  an  amendatory  law  which  would 
exclude  lands  containing  those  substances  which  might 
be  withdrawn,  from  exploration  and  location  for  min- 
ing and  all  other  purposes.  Congress  responded  by 
passing  the  act  of  August  24,  1912,^'  limiting  the  rights 
of  exploration,  discovery,  occupation  and  purchase 
under  the  mining  and  other  laws  to  lands  in  the  with-^ 
drawn  areas  containing  metalliferous  mineral.  It  is, 
therefore,  probable  that  the  activities  of  the  miner  in 
search  of  the  nonmetallic  economic  minerals  will  be 
confined  to  localities  which  have,  for  the  time  being, 
escaped  the  vigilance  of  the  geological  survey.  An 
important  discovery  of  any  of  the  substances  above 
enumerated  in  a  new  field  would  undoubtedly  result  in 
an  immediate  withdrawal  of  the  unlocated  remainder 
for  purposes  of  classification,  and  to  abide  the  subse- 
quent action  of  congress  as  to  their  disposal.  As  all 
of  these  minerals,  with  the  possible  exception  of  rock 
phosphates,  can  only  be  located  under  the  placer  laws, 
it  is  advisable  in  discussing  the  substances  which  are 
subject  to  location  under  the  placer  laws  to  invite 
attention  to  the  fact  that  lands  containing  them  may 
only  be  appropriated  under  the  mining  laws  when 
found  outside  of  withdrawn  areas ;  in  other  words,  such 
lands  temporarily  withdrawn  are  not  "public  lands." 
They  remain  in  a  state  of  reservation  until  freed  by 

18  37  Stats,  at  Large. 


987   SPECIFIC  SUBST.VNCES  SUBJECT  TO  PLACER  LOCATION.   §  420 

proelamation  of  the  president  or  by  an  act  of  congress. 
The  extent  to  which  this  power  of  withdrawal  has  been 
and  is  being  exercised  justifies  this  comment. 

§  420.  Specific  substances  classified  as  subject  to 
entry  under  the  placer  laws. — Among  the  substances, 
other  than  those  of  a  metallic  character,  which  have 
been  classified  as  mineral,  and  when  occurring  in  the 
form  of  deposits  not  in  place,  lands  containing  which 
have  been  held  to  be  subject  to  appropriation  under  the 
placer  laws,  we  note  the  following: — 

Alum;'"  asphaltum;'"  borax;''  diamonds;"  guano;" 
gypsum;"  kaolin,  or  china  clay;'*  marble;'^  mica;" 
onyx;'*  soda,  carbonate  and  nitrate;'^  slate,  for  roofing 
purposes;^"  umber;^'  building-stone." 

19  Copp's  Min.  Lands,  50;  2  L.  D.  707. 

20  Copp's  Min.  Lands,  50. 

21  Id.  50,  100;  2  L.  D.  707;  Copp's  Min.  Dec.  194;  1  Copp's  L.  0.  11. 

22  Copp's  Min.  Lands,  88.  See  Kentucky  M.  &  D.  Co.  v.  Kentucky 
T.  D.  Co.,  141  Ky.  97,  132  S.  W.  397,  398,  Ann.  Cas.  1912C,  397. 

23  Richter  V.  Utah,  27  L.  D.  95. 

24  Id.  309;  Phifer  v.  Heaton,  27  L.  D.  57;  McQuiddy  v.  State  of  Cali- 
fornia, 29  L.  D.  181.  See  Nephi  Plaster  Co.  v.  Juab  County,  33  Utah, 
114,  93  Pac.  53,  14  L.  R.  A.,  N.  S.,  1043. 

25  Copp's  Min.  Lands,  121,  176,  209;  1  L.  D.  565;  Montague  v.  Dobbs, 
9  Copp's  L.  O.  165;  Aldritt  v.  Northern  Pac.  R.  R.  Co.,  25  L.  D.  349. 

26  Copp's  Min.  Lands,  176;  Pacific  Coast  Marble  Co.  v.  N.  P.  R.  R.  Co., 
25  L.  D.  233;  Schrimpf  v.  Northern  Pac.  R.  R.  Co.,  29  L.  D.  327;  Hen- 
derson V.  Fulton,  35  L.  D.  652. 

27  Copp's  Min.  Lands,  182. 

28  Utah  Onyx  Dev.  Co.,  38  L.  D.  504. 

29  Id.  50;  2  L.  D.  707. 

80  Copp's  Min.  Lands,  143;  1  Copp's  L.  O.  132. 

81  Copp's  Min.  Lands,  161. 

82  Forsythe  v.  Weingart,  27  L.  D.  680. 

For  enumeration  of  nonmetallic  substances  which  fall  within  the  pur- 
view of  the  mining  laws,  see  Webb  v.  American  Asphaltum  Co.,  157  Fed. 
203,  205,  84  C.  C.  A.  651.  See,  also,  Holman  v.  State  of  Utah,  41  L.  D. 
314,  which  holds  that  deposits  of  ordinary  clay  and  limestone  do  not 
render  land  mineral  in  character,  though  there  may  be  deposits  of  clay 


§  421         DEPOSITS   APPROPRIATED    UNDER  PLACER   LAWS.  988 

As  to  these  substances,  we  understand  the  rule  is 
uniform,  the  elements  of  quantity  and  quality  being 
present,  by  which  the  value  of  the  land,  for  the  purpose 
of  removing  and  marketing  the  product,  is  determined. 
Other  substances  require  specific  mention. 

§  421.  Building-stone,  and  stone  of  special  commer- 
cial value. — As  heretofore  observed,^^  congress,  on 
August  4,  1892,  enacted  a  law,  wherein  it  provided  that 
any  person  authorized  to  enter  lands  under  the  mining 
laws  of  the  United  States  may  enter  lands  that  are 
chiefly  valuable  for  building-stone  under  the  provisions 
of  the  law  in  relation  to  placer  mineral  claims.**  The 
previous  rulings  by  the  land  department,  as  to  whether 
land  containing  stone  of  this  character  was  subject  to 
entry  under  the  placer  laws,  were  not  uniform. 

In  the  case  of  Bennett,'''  Commissioner  McFarland 
expressed  the  opinion  that  lands  of  such  character  were 
subject  to  such  entry. 

Some  years  later.  Assistant  Secretary  Chandler  de- 
clined to  accept  the  views  of  the  commissioner,  and 
established  the  contrary  doctrine."  The  following 
year,  the  same  assistant  secretary  "explained"  and 
''distinguished"  his  previous  ruling,  and  practically 
adopted  the  views  of  Commissioner  McFarland  in  a 
case  involving  the  interpretation  of  the  law  as  it  existed 
prior  to  the  passage  of  the  act  of  August  4,  1892." 

Secretary  Noble  held  that  this  class  of  land  was  not 
"mineral  land"  so  as  to  preclude  its  entry  under  the 

and  limestone  of  such  exceptional  nature  as  to  warrant  entry  under 
the  mining  laws. 

83  Ante,  §  139. 

34  27  Stats,  at  Large,  p.  348;  Comp.  Stats.  1901,  p.  1434;  5  Fed.  Stats. 
Ana.  47. 

36  1884,  3  L.  D.  116. 

86  Conlin  v.  Kelly  (1891),  12  L.  D.  1. 

ST  McGlenn  v.  Wienbroeer,  15  L.  D.  370. 


989  SUBJECT  TO  PLACER  LOCATION — BUILDING-STONE.       §  421 

agricultural  land  laws,  although  the  proof  showed  that 
the  tract  in  question  was  more  valuable  for  the  build- 
ing-stone it  contained  than  for  agricultural  purposes, 
following  the  first  ruling  of  Assistant  Secretary  Chan- 
dler.^« 

A  few  months  later  Secretary  Smith  held  that  under 
the  law  as  it  existed  prior  to  the  passage  of  the  act  of 
August  4,  1892,  land  containing  a  deposit  of  sandstone 
of  a  superior  quality  for  building  and  ornamental  pur- 
poses, and  valuable  only  as  a  stone  quarry,  might  be 
entered  as  a  placer  claim  under  the  general  mining 
laws,^^  which  ruling  was  practically  ignored  by  Assist- 
ant Secretary  Sims  in  a  later  case." 

Secretary  Bliss  originally  expressed  the  opinion  that 
prior  to  1892  lands  chiefly  valuable  for  building-stone 
could  not  be  purchased  under  the  placer  laws;"  but  on 
review  of  the  same  case  he  vacated  his  first  decision  and 
reached  an  opposite  conclusion.*-  The  land  depart- 
ment has  finally  settled  the  rule  that  building-stone  is 
a  mineral." 

The  passage  of  the  act  of  congress  referred  to,  occur- 
ring as  it  did  subsequent  to  Assistant  Secretary  Chan- 
dler's first  ruling,  was  a  legislative  affirmance  of  the 
theory  of  interpretation  applied  to  other  classes  of  non- 
metallic  substances,  and  a  recognition  of  the  rule  which 
has  for  its  foundation  the  element  of  commercial  value. 

88  Clark  V.  Ervin  (Feb.  1893),  16  L.  D.  122. 

39  Van  Doren  v.  Plested,  16  L.  D.  508. 

*o  In  re  Delaney,  17  L.  D.  120.  See,  also,  In  re  Randolph,  23  L.  D. 
329. 

41  Hayden  v.  Jamison,  24  L.  D.  403. 

*2  Hayden  v.  Jamison,  26  L.  D.  373. 

*3  Pacific  Coast  Marble  Co.  v.  N.  P.  R.  R.  Co.,  25  L.  D.  233 ;  Hayden  v. 
Jamison,  on  review,  26  L.  D.  373;  Forsythe  v.  Weingart,  27  L.  D.  680; 
Schrimpf  v.  N.  P.  R.  R.  Co.,  29  L.  D.  327;  Henderson  v.  Fulton,  35  L. 
D.  652. 


§  421         DEPOSITS   APPROPRIATED    UNDER   PLACER   LAWS.  990 

More  than  once  congress  has  intervened  when  the  de- 
partment has  undertaken  to  disregard  this  element, 
by  applying  arbitrary  rules  to  individual  cases.**  A 
notable  instance  will  be  found  when  we  reach  the  sub- 
ject of  petroleum. 

The  supreme  court  of  Montana  followed  the  ruling  of 
Commissioner  McFarland  in  the  Bennett  case."  The 
supreme  court  of  Washington  at  one  time  declined  to 
accept  the  reasoning  of  the  supreme  court  of  Montana, 
and  held  that  the  term  "mineral"  was  intended  to  em- 
brace only  deposits  of  ore,  and  the  idea  of  a  nonminer- 
alized  deposit  was  excluded."  Subsequently,  however, 
it  reversed  itself.*^ 

As  the  law  now  stands,  lands  containing  deposits  of 
building-stone  in  such  quantities   as   to   render  them  ^ 
more  valuable  for  quarrying  purposes  than  any  other 
may  be  entered  as  placers  under  the  mining  laws,*^  or 
purchased  under  the  stone  and  timber  act  of  June  3, 
1878." 

Lands  containing  limestone  used  for  fluxing  in  metal- 
lurgical operations,  or  for  the  purpose  of  manufactur- 
ing the  lime  of  commerce,  have  been  held  to  be  subject 
to  entry  under  the  placer  laws.^°     Sandstone  is  held 

♦4  Webb  V.  American  Asphaltum  Co.,  157  Fed.  203,  207,  84  C.  C.  A. 
651;  Union  Oil  Co.,  on  review,  25  L.  D.  351. 

«  Freezer  v.  Sweeney,  8  Mont.  508,  21  Pac.  20,  21. 

46  Wheeler  v.  Smith,  5  Wash.  704,  32  Pac.  784,  786. 

47  State  V.  Evans,  46  Wash.  219,  89  Pac.  565,  10  L.  B.  A.,  N.  S.,  1163. 

48  Webb  V.  American  Asphaltum  Co.,  157  Fed.  203,  205,  84  C.  C.  A. 
651. 

49  20  Stats,  at  Large,  p.  89;  Comp.  Stats.  1901,  p.  1545;  7  Fed.  Stats. 
Ann.  300;  Forsythe  v.  Weingart,  27  L.  D.  680.     Ante,  §  210. 

60  Commissioner  Burdett  (1875),  Copp's  Min.  Lands,  176;  Maxwell  v. 
Brierly  (1883),  10  Copp's  L.  O.  50;  Shepherd  v.  Bird  (1893),  17  L.  D. 
82;  Morrill  v.  Northern  Pac.  E.  B.  Co.,  30  L.  D.  475;  Johnston  v.  Har- 
rington, 5  Wash.  93,  31  Pac.  316,  317. 


991      SUBJECT  TO  PLACER  LOCATION — PETROLEUM.     §  422 

to   be   a   mineral,"   as   well    as   slate,   marble,"    and 
granite.'^ 

Deposits  of  this  character,  although  essentially  in 
place,  are  locatable  under  the  placer  laws  if  they  do  not 
contain  other  mineral  or  valuable  deposits.  They  are 
considered  the  ''rock  in  place,"  but  not  a  ''vein  or  lode 
of  quartz  or  other  rock  in  place  bearing  gold  .... 
or  other  valuable  deposits."" 

§  422.  Petroleum. — Petroleum  has  always  been  rec- 
ognized as  a  mineral."  As  was  said  by  the  supreme 
court  of  Pennsylvania:  *'It  is  a  mineral  substance  ob- 
tained from  the  earth  by  the  process  of  mining,  and 
lands  from  which  it  is  obtained  may,  with  propriety,  be 
called  mining  lands";'®  although  that  court  had  previ- 
ously held  that  while  admitting  petroleum  to  be  min- 
eral, it  was  not  included  in  a  reserv^ation  of  ''mineral" 
in  a  deed.*^      Whatever  may  be   the   origin  of  petro- 

61  Beaudette  v.  N.  P.  E.  R.  Co.,  29  L.  D.  248. 

62  Schrimpf  v.  N.  P.  R.  R.  Co.,  29  L.  D.  327;  Pacific  Coast  Marble 
Co.  V.  N.  P.  R.  R.  Co.,  25  L.  D.  233;  Beaudette  v.  N.  P.  E.  R.  Co.,  29 
L.  D.  327;  Phelps  v.  Church  of  Our  Ladj,  115  Fed.  883,  53  C.  C.  A. 
407 ;  Armstrong  v.  Lake  Champlain  Granite  Co.,  147  N.  Y.  495,  49  Am. 
St.  Rep.  683,  42  N.  E,  186,  189;  Brady  v.  Brady,  31  Misc.  Rep.  411,  65 
N.  Y.  Supp.  621. 

53  Armstrong  v.  Lake  Champlain  Granite  Co.,  147  N.  Y.  495,  49  Am. 
St.  Rep.  683,  42  N,  E.  186,  189;  Northern  Pac.  R.  R.  Co.  v.  Soderberg, 
9Q  Fed.  506,  508;   S.  C,  on  appeal,  104  Fed.  425,  43  C.  C.  A.  620. 

6*  Henderson  t,  Fulton,  35  L.  D.  652;  In  re  Roy  McDonald,  40 
L.  D.  7. 

66  Ante,  §  93. 

66  Gill  V.  Weston,  110  Pa.  316,  1  Atl.  921.  See,  also,  Stoughton's 
Appeal,  88  Pa.  198;  Thompson  v.  Noble,  3  Pittsb.  201;  Murray  v.  Allred, 
100  Tenn.  100,  66  Am.  St.  Rep.  740,  43  S.  W.  355,  358,  39  L.  R.  A. 
249;  Williamson  v.  Jones,  39  W.  Va.  231,  19  S.  E.  436,  441,  25  L.  R. 
A.  222. 

67  Dunham  v.  Kirkpatrick,  101  Pa.  36,  47  Am.  Rep.  696.  See,  also, 
Detlor  V.  Holland,  57  Ohio  St.  492,  49  N.  E.  690,  692,  40  L.  R.  A.  266. 
The  case  of  Dunham  v.  Kirkpatrick,  supra,  is  held  by  the  supreme  court 
of  Michigan  to  be  against  the  weight  of  authority.     Weaver  v.  Richards 


§  422         DEPOSITS    APPROPRIATED    UNDER   PLACER   LAWS.  992 

leum,  a  still  controverted  question,  it  is  well  settled 
that  it  is  a  mineral/^  Lands  being  developed  for  oil 
under  the  United  States  mining  laws  are  ''mining 
claims."*' 

Judge  Ross,  sitting  as  circuit  judge  in  the  ninth  cir- 
cuit, held  that  public  land  containing  petroleum  could 
only  be  acquired  pursuant  to  the  provisions  of  the  min- 
ing laws  relating  to  placer  claims.""  It  would  seem  that 
this  view  was  entertained  by  the  land  department,®^ 
until  Secretary  Hoke  Smith,  in  August,  1896,  ruled  that 
petroleum  lands  were  not  mineral  lands,  could  not  be 
entered  under  the  mining  laws,"  and  might  be  selected 
by  the  states  in  lieu  of  lost  sixteenth  and  thirty-sixth 
sections." 

Congress  promptly  intervened,  as  it  had  on  a  previ- 
ous occasion  in  reference  to  building-stone,"  and  by  act 
approved  February  11,  1897,  ordained: — 

That  any  person  authorized  to  enter  lands  under 
the  mining  laws  of  the  United  States  may  enter  and 
obtain  patent  to  lands  containing  petroleum,  or  other 
mineral  oils,  and  chiefly  valuable  therefor,  under  the 
provisions  of  the  laws    relating   to   placer   mineral 

(Mich.)  J  120  N.  W.  818,  819.  It  is  followed  bj  the  supreme  court  of 
Kentucky.  McKinney's  Heirs  v.  Central  Kentucky  N.  G.  Co.,  134  Ky. 
239,  20  Ann.  Cos.  934,  120  S.  W.  314,  315.  And  the  principle  is  adopted 
by  the  supreme  court  of  Louisiana.  J.  M.  Guffey  Petroleum  Co.  v. 
Murrel,  127  La.  466,  53  South.  705,  712. 

68  Lanyon  Zinc  Co.  t.  Freeman,  68  Kan.  691,  75  Pac.  995,  997,  1  Ann. 
Cas.  403. 

59  Berentz  v.  Belmont  Oil  Co.,  148  Cal.  577,  113  Am.  St.  Eep.  308, 
84  Pac.  47,  48. 

60  Gird  V.  California  Oil  Co.,  60  Fed.  531,  532.  See,  also,  Olive  L. 
and  D.  Co.  v.  Olmstead,  103  Fed.  568,  572. 

61  In  re  A.  A.  Dewey,  9  Copp's  L.  O.  51;  Downey  v.  Rogers,  2  L.  D. 
707;  In  re  Samuel  Eogers,  4  L.  D.  284;  Eoberts  v.  Jepson,  4  L.  D.  60; 
Piru  Oil  Co.,  16  L.  D.  117. 

62  Ex  parte  Union  Oil  Co.,  23  L.  D.  222. 

63  Chandler  v.  State  of  California,  Oct.  27,   1896. 
C4  Ante,  §  421. 


993  SUBJECT   TO   PLACER   LOCATION — NATURAL   GAS.         §  423 

claims:  Provided,  that  lands  containing  such  petro- 
leum, or  other  mineral  oils,  which  have  heretofore 
been  filed  upon,  claimed,  or  improved  as  mineral,  but 
not  yet  patented,  may  be  held  and  patented  under  the 
provisions  of  this  act  the  same  as  if  such  filing,  claim, 
or  improvement  were  subsequent  to  the  date  of  the 
passage  hereof. 

The  land  department  subsequently  overruled  the  de- 
cision of  Secretary  Smith." 

This,  of  course,  settles  the  question  for  the  future. 
We  think  the  act  of  congress  was  but  a  legislative 
recognition  of  the  law  as  it  previously  existed.  As  was 
said  by  Secretary  Bliss, — 

This  legislative  action  so  promptly  taken  after  the 
departure  from  the  earlier  rulings  and  the  long  estab- 
lished practice  thereunder  is  significant  and  can 
hardly  be  considered  as  less  than  a  disapproval  by 
congress  of  the  changed  ruling." 

§  423.  Natural  gas. — Natural  gas  is  as  much  an 
article  of  commerce  as  iron  ore,  oil,  coal,  petroleum,  or 
any  other  of  the  like  products  of  the  earth." 

It  is  true  [said  the  supreme  court  of  Pennsyl- 
vania] that  gas  is  a  mineral,  but  it  is  a  mineral  with 
peculiar  attributes,  which  require  the  application  of 
precedents  arising  out  of  ordinary  mineral  rights, 
with  much  more  careful  consideration  of  the  princi- 
ples involved  than  the  mere  decision.^* 

85  Union  Oil  Co.,  on  review,  25  L.  D.  351;  McQuiddy  v.  State  of  Cali- 
fornia, 29  L.  D.  181;  Southern  Pac.  R.  R.  Co.,  41  L.  D.  264. 

«6  Union  Oil  Co.,  on  review,  25  L.  D.  351.  To  the  same  effect  is 
Webb  V.  American  Asphaltum  Co.,  157  Fed.  203,  207,  84  C.  C.  A.  651. 

87  State  V.  Indiana  &  Ohio  O.  G.  &  M.  Co.,  120  Ind.  575,  6  L.  R.  A. 
579,  22  N.  E.  778;  2  Interstate  Com.  Rep.  758.  See  interesting  note 
in  25  L.  R.  A.  222. 

88  Westmoreland  &  Cambria  Nat.  Gas  Co.  v.  De  Witt,  130  Pa.  235, 
18  Atl.  724,  5  L.  R.  A.  731  (cited  in  Murray  v.  Allred,  100  Tenn.  100, 
66  Am.  St.  Rep.  740,  39  L.  R.  A.  249,  43  S.  W.  355,  359). 

Lindley  on  M. — 63 


§  423         DEPOSITS   APPROPRIATED    UNDER   PLACER   LAWS.  994, 

Although  its  origin  is  a  matter  of  controversy,  it  is 
well  settled  that  it  is  a  mineral/^ 

It  was  held  by  the  court  of  appeals  of  Ontario  that 
natural  gas  is  a  mineral  within  the  meaning  of  a  stat- 
ute which  gives  corporations  power  to  sell  or  lease  min- 
eral rights  under  highways;'^"  and  the  supreme  court 
of  the  United  States  has  decided  that  this  commodity, 
when  brought  into  this  country  from  Canada  through 
pipes,  was  exempt  from  duty  as  "crude  mineral. '"^^ 

While,  owing  to  its  "fugitive  and  wandering  exist- 
ence within  the  limits  of  a  particular  tract,""  the 
appropriation  of  it  under  the  mining  laws  applicable  to 
placers  suggests  an  apparent  absurdity,  yet,  as  it  is  a 
mineral,  is  an  article  of  commerce,  and  of  great  utility 
in  an  economic  sense,  we  do  not  see  why  lands  showuv 
to  contain  it  in  quantities  sufficient  to  make  them  more 
valuable  for  that  purpose  than  any  other  should  not  be 
entered  under  the  placer  laws.  The  difference  between 
asphaltum,  mineral  tar,  petroleum,  and  natural  gas,  is 
only  one  of  degree." 

69  Lanyon  Zine  Co.  v.  Freeman,  68  Kan.  691,  1  Ann.  Cas.  403,  75 
Pac.  995;  Alound  City  B.  &  G.  Co.  v.  Goodspeed  G.  &  O.  Co.,  83  Kan. 
136,  109  Pac.  1002,  1  Water  &  Min.  Cas.  244.  See,  also,  Isone  v.  Rex 
Crude  Oil  Co.,  147  Cal.  659,  82  Pac.  317,  318;  People  v.  Bell,  237  111. 
332,  15  Ann.  Cas.  571,  86  N.  E.  593,  594,  19  L.  R.  A.,  N.  S.,  746,  and 
cases  cited;  Osborne  v.  Arkansas  T.  &  0.  Co.  (Ark.),  146  S.  W.  122,  124. 

70  Ontario  Nat.  Gas  Co.  v.  Gosfield,  18  Ont.  App.  626. 

71  United  States  v.  Buffalo  Nat.  Gas  Fuel  Co.,  172  U.  S,  339,  342, 
19  Sup.  Ct.  Rep.  200,  43  L.  ed.  469,  affirming  78  Fed.  110,  24  C,  C.  A. 
4,  45  U.  S.  App.  345,  and  73  Fed.  191.  See,  also,  vol.  62  Eng.  &  Min. 
Journal,  p.   602, 

72  Brown  v.  Vandergrift,  80  Pa.  147.  See,  also,  Murray  v.  AUred, 
100  Tenn.  100,  66  Am.  St.  Rep.  740,  43  S.  W.  355,  359,  39  L.  R.  A.  249. 

73  As  to  the  ownership  of  natural  gas  and  the  right  of  the  state  to 
prevent  its  exportation  beyond  the  state,  see  Kansas  Natural  Gas  Co. 
V.  Haskell,  172  Fed.  545,  562;  HaskeU  v.  Kansas  Natural  Gas  Co.,  224 
U.  S.  217,  32  Sup.  Ct.  Rep.  442,  56  L.  ed.  738;  West  v.  Kansas  Natural 
Gas  Co.,  221  U.  S.  229,  31  Sup.  Ct.  Rep.  564,  55  L.  ed.  716,  35  L.  R.  A., 
N.   S.,   1193.     As  to   title  to  natural  gas  th§  Indiana   rule  is  assumed 


995         SUBJECT  TO  PLACER  LOCATION — BRICK.        §  424 

§  424.  Brick  and  other  classes  of  clay. — Kaolin,  or 
china  clay,  is  classified  as  hydrous  aluminum  silicate, 
is  extensively  used  in  the  ceramic  art  and  is  the  aristo- 
cratic head  of  the  clay  family.  It  is  classified  as  a 
mineral  by  the  land  department,  and  lands  containing 
it  are  subject  to  location  under  the  placer  laws.  Lands 
containing  deposits  of  ordinary  clay  used  in  the  manu- 
facture of  brick  are  not  so  considered.  Common  clay 
is  classified  metallurgically  the  same  as  kaolin,  but  its 
use  is  of  such  a  commonplace  character,  and  its  distri- 
bution is  so  diffused  over  the  earth,  that  it  has  been 
denied  entrance  into  the  category  of  minerals  by  the 
land  department.  Secretary  Vilas  held  that,  although 
a  given  tract  was  undoubtedly  more  valuable  as  a  ''clay 
placer"  than  for  any  other  purpose,  it  was  not  mineral 
land,  and  could  not  be  appropriated  under  the  mining 
laws/* 

The  manufactured  product  from  a  bed  of  brick  clay 
is  more  commonplace  than  the  porcelain  obtained  from 
kaolin,  or  china  clay,  but  we  cannot  understand  why 
this  should  make  any  difference.  The  element  of  value 
in  both  cases  rests  upon  the  marketability  of  the  manu- 
factured product.  Under  the  English  decisions,  brick 
clay  is  classified  as  a  mineral  under  "the  railway 
clauses  act,'"°  and  we  can  conceive  of  no  logical 
reason  why,  in  the  administration  of  the  federal  mining 
laws,  any  discrimination  should  be  made  as  between  the 
finer  and  coarser  grades  of  a  substance,  if  it  can  be 
extracted,  removed,  and  marketed  at  a  profit. 

The  last  expressions  of  the  land  department,  how- 
ever, are  opposed  to  the  classification   of  deposits  of 

to  be  different  from  the  general  rule.  See  Kansas  Natural  Gas  Co.  v. 
Haskell,  supra. 

7*  Dunluce  Placer  ^line,  6  L.  D.  761.  See,  also,  Jordan  v.  Idaho 
Aluminum  M.  &  M.  Co.,  20  L.  D.  500. 

"  Ante,  §  92,  p.  100. 


§  424         DEPOSITS    APPROPRIATED    UNDER  PLACER  LAWS. 


996 


ordinary  brick  clay  as  ''mineral"  within  the  meaning 
of  the  laws  applicable  to  placer  locations.  Lands  con- 
taining this  substance  fall  within  the  definition  of  agri- 
cultural lands.^" 

We  deferentially  suggest  that  while  it  is  true  that 
this  last  analysis  is  in  accordance  with  previous  depart- 
mental rulings  as  to  brick  clay,  the  result  reached  is  not 
altogether  consistent  with  the  principle  repeatedly  an- 
nounced by  the  department  with  reference  to  numer- 
ous other  nonmetallic  substances, — that  marketability 
at  a  profit  is  the  test  of  the  mineral  character  of  a  given 
tract  of  public  land. 

The  courts,  so  far  as  they  have  spoken,  disagree  with 
the  views  of  the  land  department  on  principle."  A 
similar  disagreement  exists  between  the  courts  and^ 
land  department  as  to  sand  and  gravel.''  Just  how  the 
department  would  classify  fireclay  used  for  making  the 
pottery  of  commerce  remains  to  be  determined.  Prob- 
ably it  would  fall  into  the  same  category  as  kaolin. 

It  is  not  difficult  to  account  for  this  divergence  of 
opinion.  The  courts  follow  a  consistent  uniformly 
recognized  principle  which  establishes  the  test  of 
profitable  marketability.  The  land  department  fol- 
lows this  principle  as  a  general  rule,  but  disregards 
it  in  the  case  of  the  commonplace  substances  such  as 
ordinary  clay,  sand  and  gravel.  We  submit  deferen- 
tially that  the  commonplace  quality  of  a  substance  is 
not  a  sufficient  warrant  for  departing  from  the  general 
rule.     However,  as  the  land  department  is  the  only  tri- 

76  King  V.  Bradford,  31  L.  D.  108;  Holman  v.  State  of  Utah,  41  L. 
D.  314.  The  latter  case  intimates  that  there  may  be  deposits  of  clay 
of  such  exceptional  nature  as  to  warrant  entry  under  the  mining  laws. 

T7  State  V.  Evans,  46  Wash.  219,  89  Pac.  565,  567,  10  L.  R.  A.,  N.  S., 

1163. 

T8  Loney   v.   Scott,    57    Or.   378,    112    Pac.    172,    174;    Zimmerman   v. 

Brunson,  39  L.  D.  310. 


997      SUBJECT  TO  PLACER  LOCATION — PHOSPHATES.    §  425 

bunal  which  has  the  power  to  determine  the  character 
of  land,  it  has  the  undoubted  privilege  of  making  ex- 
ceptions to  general  rules,  and  the  courts  cannot  inter- 
fere with  the  exercise  of  this  prerogative/' 

§  425.  Phosphatic  deposits. — Until  a  comparatively- 
recent  date,  the  only  public  land  state  in  the  Union 
where  the  phosphatic  deposits  were  known  to  occur  in 
appreciable  quantities  was  Florida.  Deposits  of  this 
character  have  been  extensively  mined  in  South  Caro- 
lina since  1868,  but  their  existence  in  Florida  was  not 
known  until  1887,  since  which  time  they  have  come 
into  prominence,  and  have  assumed  considerable  eco- 
nomic importance.  They  are,  in  general,  most  abun- 
dant in  ancient  river  bottoms,  where  they  have  been 
washed  together  from  their  original  beds.^°  Since 
1890  mining  of  these  deposits  has  been  conducted  upon 
a  large  scale,  the  shipments  constituting  a  heavy  item 
in  the  freights  of  the  several  railroads  of  the  state. 
The  raw  material  is  consumed  in  large  quantities  in  the 
United  States,  and  it  is  exported  to  the  various  parts 
of  Europe.^^ 

Secretaiy  Smith  held  that  land  chiefly  valuable  for 
phosphatic  deposits  of  this  character  is  mineral  in  char- 
acter,^^ although,  under  a  special  act  of  congress,  a 
homestead  claimant  who  had  initiated  a  right  in  igno- 
rance of  the  existence  of  such  deposits  within  the  tract 
might  perfect  his  entry,  notwithstanding  their  discov- 
ery prior  to  the  final  entry,®^  thus  changing  the  rule 

T9  Ante,  §  108. 

80  Dana's  "System  of  Mineralogy,"  6th  ed.,  p.  769. 

81  "Preliminary  Sketch  of  the  Phosphates  of  Florida,"  by  George  H. 
Eldridge — Trans.  Am.  Inst.,  M.  E.,  vol.  xxi,  p.  196. 

82  Gary  v.  Todd,  18  L.  D.  58. 

83  Id.,  on  review,  19  L.  D.  475. 


§  425         DEPOSITS   APPROPRIATED    UNDER   PLACER   LAWS.  998 

governing  ordinary  mineral  lands  within  inchoate 
homestead  claims,  announced  in  a  previous  section.^* 
The  same  secretary  also  held  that  under  the  acts 
granting  land  to  the  Florida  Railway  and  Navigation 
Company,  passed  respectively  in  1856  and  1874,  lands 
containing  this  class  of  deposits  might  be  selected  in 
satisfaction  of  the  grants.''  The  reasons  assigned 
were : — 

(1)  That  the  act  of  1856  did  not  in  terms  reserve 
mineral  lands; 

(2)  That  in  the  act  of  1874,  where  mineral  lands  are 
reserved,  the  word  "mineral"  is  used  in  a  limited 
sense,  and  cannot  be  construed  to  include  phosphates. 

This  decision  was  subsequently  overruled.'® 

We  have  fully  explained  the  law  as  we  understand  it^ 
in  the  article  on  railroad  grants.'' 

As  a  matter  of  present  classification.  Secretary  Smith 
conceded  that  lands  of  this  class  are  subject  to  entry 
under  the  mining  laws,  and  lands  containing  phosphate 
deposits  of  all  classes  are  undoubtedly  mineral  in  char- 
acter and  subject  to  appropriation  under  the  mining 
laws  when  the  element  of  marketability  at  a  profit 
is  present.  The  department  treats  guano  islands  found 
within  the  public  domain  as  mineral  land." 

Prior  to  December,  1908,  phosphatic  deposits  were 
discovered  in  Southeastern  Idaho  and  adjacent  parts 
of  Wyoming  and  Utah.  Limited  areas  were  appropri- 
ated and  some  of  these  areas  were  patented  under  the 
mining  laws.  Later  similar  deposits  were  discovered 
in  Montana.    These  deposits  are  utilized  in  the  manu- 

84  Ante,  §  208. 

85  Tucker  v.  Florida  Ry.  &  Nav.  Co.,  19  L.  D.  414. 

86  Pacific  Coast  Marble  Co.  t.  Northern  Pac.  R.  R.  Co.,  25  L.  D.  233; 
Florida  Cent.  &  P.  R.  R.  Co.,  26  L.  D.  600. 

87  Ante,  §§  158,  159. 

88  Richter  v.  State  of  Utah,  27  L.  D.  95. 


999  MANNER   OF   LOCATING    PHOSPHATE    DEPOSITS.  §  •i25A 

facture  of  super-phosphates  by  the  addition  of  sul- 
phuric acid,  a  by-product  from  the  smelters,  the  manu- 
factured product  being  used  as  a  fertilizer.  The  lower 
grades  are  also  used  to  some  extent  for  soil  dressing 
after  being  pulverized.  The  recognized  great  economic 
value  and  extent  of  these  deposits  induced  their  classi- 
fication with  coal,  petroleum  and  natural  gas  in  the 
proposed  conservation  measures  alluded  to  in  previous 
sections.®*"  At  the  present  time,  all  public  lands  known 
or  supposed  on  good  evidence  to  contain  valuable  phos- 
phate deposits  are  withdrawn  by  an  order  of  the  secre- 
tary of  the  interior  from  all  forms  of  entry  under  the 
public  land  laws." 

§  425a.     Manner  of  locating  phosphate  deposits. — 

Prior  to  the  discoveiy  of  the  phosphatic  deposits  in 
Idaho,  Wyoming  and  Utah,  the  department  classified 
lands  containing  this  class  of  minerals  in  Florida  as 
placers.  As  noted  in  the  preceding  section,  the  de- 
posits were  of  sedimentary  origin  of  an  alluvial  type, 
and  this  manner  of  their  occurrence  suggested  no  ques- 
tion as  to  whether  they  should  be  appropriated  as 
placers  or  as  lodes.  These  western  deposits  are  what 
are  termed  rock  phosphates.  In  order  to  understand 
the  embarrassments  which  subsequently  arose  and  now 
exist  with  regard  to  the  manner  in  which  these  deposits 
should  have  been  or  should  be  located,  it  is  pertinent 
to  explain  how  they  occur.  In  this  behalf,  we  quote 
from  an  exceedingly  interesting  monograph  or  report  by 
Messrs.  Hoyt  S.  Gale  and  Ralph  W.  Richards,  appear- 
ing in  Bulletin  430  of  the  United  States  Geological 
Survey :®° — 

88a  §§  200,  200a,  200b,  200c. 

89  Bulletin  No.  430,  U.  S.  Geol.  Survey,  p.  535,  by  Hoyt  S.  Gale  and 
Ealph  W.  Richards. 

90  Page  461. 


§  425a      deposits  appropriated  under  placer  laws.       1000 

The  rock  phosphate  deposits  of  the  Idaho,  Utah 
and  Wyoming  fields  are  original  sedimentary  forma- 
tions laid  down  at  the  time  when  that  part  of  the 
earth 's  surface  was  largely  covered  by  water.  Since 
the  time  in  which  the  phosphatic  strata  were  depos- 
ited other  rock  forming  sediments  have  been  accumu- 
lated so  that  many  thousands  of  feet  of  subsequent 
strata  have  been  accumulated,  and  have  overlain  or 
succeeded  them.  Deformation  of  the  earth's  crust 
has  tilted,  folded  and  broken  these  strata  which  orig- 
inally lay  flat.  Uplift  of  the  land  or  recession  of 
the  sea  has  subjected  the  rocks  in  their  disturbed 
positions  to  stream  erosion  and  the  action  of  atmos- 
pheric agencies,  so  that  great  bodies  of  the  more 
elevated  parts  have  been  removed  entirely  and  the 
truncated  edges  of  the  rock  strata  are  now  exposed 
at  the  surface.  The  occurrence  of  the  rock  phos- 
phate at  the  surface  of  the  ground  now  depends  on 
the  geologic  structure  and  more  or  less  accidental 
relationships,  such  as  absence  of  masking  cover  of 
later  deposits,  depths  of  erosion  and  many  minor  fac- 
tors. 

The  rock  phosphate  deposits  are  thus  more  prop- 
erly analogous  to  coal  and  limestone  and  especially 
to  the  Clinton  iron  ores  of  the  Appalachian  region 
than  they  are  to  ore  deposits  such  as  veins  or  lodes  or 
to  alluvial  deposits. 

As  to  whether  these  deposits  should  be  classified  as 

lodes  or  placers,  the  same  authors  say : — 

In  both  the  legal  and  the  geologic  meaning  of  the 
term,  the  Idaho  rock-phosphate  deposits  are  cer- 
tainly ' '  rock  in  place. ' '  They  are  analogous  to  most 
sedimentary  building-stone  deposits  in  the  manner  of 
their  formation,  but  like  coal  they  are  also  bodies  of 
valuable  mineral  inclosed  between  walls.  According 
to  the  scientific  or  geologic  definitions,  these  depos- 
its are  not  properly  lodes  or  veins.  In  any  sense, 
however,  the  western  phosphate  deposits  do  not 
conform  to  the  placer  type,  and  unless  by  specific 


1001  MANNER  OF  LOCATING   PHOSPHATE  DEPOSITS.         §  425a 

act  of  congress,  it  appears  that  there  is  so  far  no  suffi- 
cient warrant  for  their  location  under  the  placer  law. 
Court  decisions  have  not  always  upheld  the  strict 
or  scientific  definition  of  the  teiTn  "vein"  (or  lode 
used  in  the  same  sense  as  vein),  and  there  is,  there- 
fore, reasonable  doubt  as  to  the  applicability  or  non- 
applicability  of  that  teiTH  in  its  legal  sense  to  these 
phosphate  deposits.  Undoubtedly  they  are  not  veins 
or  fissure  fillings  according  to  the  accepted  min- 
eralogical  or  geologic  definitions.  The  so-called  pop- 
ular mining  use  of  the  terms  vein  and  lode  very  prob- 
ably originated  in  large  part  through  necessities 
arising  from  the  inapplicability  of  the  mining  law. 
Loose  interpretation  has  been  forced  in  the  effort  to 
stretch  the  provisos  of  the  law  to  cover  conditions 
not  jDrovided  for.  Certain  legal  authorities — perhaps 
a  majority — may  be  quoted  as  entirely  in  favor  of  a 
loose  popular  interpretation  of  the  term  "lode,"  so 
that  bedded  sedimentary  rocks  would  also  fall  within 
that  class.  However  justified  this  may  be  for  the 
present  status  under  the  law,  or  however  well  sub- 
stantiated in  court  decisions,  the  fact  remains  that  it 
is  incongruous  and  illogical  and  points  to  the  need 
for  special  consideration  by  congress. 

An  interesting  article  appearing  in  the  Engineering 
and  Mining  JournaP^  describes  these  deposits  and  pre- 
sents a  series  of  photographs  which  induce  the  convic- 
tion that  they  fall  within  the  classification  discussed  in 
a  previous  section;®^  i.  e.,  a  deposit  in  place  containing 
a  nonmetallic  substance  in  the  general  mass  of  the 
mountain  and  between  well-defined  boundaries. 

The  earlier  attitude  of  the  land  department  in  the 
matter  of  classifying  these  deposits  is  concisely  stated 
by  Judge  Van  Fleet,  United  States  District  Judge,  sit- 
ting in  the  district  of  Idaho,  in  a  suit  brought  by  a  junior 

ei  February  25,  1911,  vol.  91,  p.  413,  by  Claude  T.  Bice. 
82  §  323. 


§  425a      deposits  appropriated  under  placer  laws.       1002 

lode  locator  against  a  prior  placer  locator  and  patent 
applicant  involving  the  question  of  proper  classifica- 
tion.'' After  describing  the  manner  in  which  the  de- 
posits occur,  which  description  is  similar  to  that  above 
quoted  from  Bulletin  430  of  the  Geological  Survey,  the 
judge  says: — 

The  indefinite  nature  of  these  deposits,  in  the  par- 
ticulars noted,  has  induced  the  land  department  to 
vary  somewhat  inconsistently  in  its  determination  of 
the  question  whether  they  are  properly  the  subject  of 
lode  location  and  to  be  sold  as  such,  or  to  be  located 
and  sold  as  placer  ground:  the  department  having 
granted  to  the   defendant  a  patent  under  a  placer 
location  for  a  claim  in  the  midst  of  these  here  in- 
volved in  the  same  deposit  or  bed,  and  allowed  final 
entries  on  a  number  of  other  like  locations  on  similar 
deposits  in  the  same  section  of  the  countiy;  whereas 
it  has  on  the  other  hand,  passed  to  patent  a  number 
of  lode  locations  on  the  same  character  of  formation 
within  the  general  area  above  described. 
As  a  matter  of  fact,  claims  in  the  rock-phosphate 
fields  have  been  located  in  many  instances  as  both  lodes 
and  placers  by  the  same  person,  and  sometimes  as  pla- 
cers  containing   known   lodes.     When  there   was   no 
hostile  relocation  or  adverse  claim,  the  question  was 
not  necessarily  raised  in  the  department  and  patents 
were  not  difficult  to  obtain  under  either  classification. 
But  where  there  were  adverse  locations,  one  set  of  loca- 
tors claiming  the  land  as  placer  and   a  later  set  re- 
locating as  lodes,  or  vice  versa,  the  department  was 
confronted  with  a  somewhat  embarrassing  question. 
The  latest  rulings  of  which  the  author  has  any  note  are 
a  decision  by  the  commissioner  of  the  general  land 
office,  September  24,  1910,  in  the  case  of  Union  Phos- 
phate Co.  V.  Duffield,^*  in  favor  of  the  lode  claimant 

83  Duffield  V.  San  Francisco  Chemical  Co.,  198  Fed.  942. 
8*  Unreported. 


1003  MANNER  OF  LOCATENQ  PHOSPHATE  DEPOSITS.         §  ■425a 

and  a  decision  by  the  secretar^^  of  the  interior  also  in 
favor  of  the  lode  claimant.'^*  Congress  has  been  ap- 
pealed to  and  several  measures  have  been  proposed — 
on  different  lines.  One  series  of  measures  proposed 
to  recognize  all  locations,  whether  lode  or  placer, 
theretofore  made,  as  valid,  rights  being  determined 
by  priority.  As  to  future  locations,  they  were  to  be 
made  under  the  placer  laws.  "Where  lode  patents 
were  to  be  issued  for  lode  locations  previously  made, 
there  was  to  be  no  extralateral  right  allowed.  There 
are  also  conservation  measures  pending  which  con- 
template the  leasing  of  these  lands,  the  government 
retaining  the  right  and  to  a  certain  extent  controlling 
the  output  to  prevent  monopoly  on  the  one  hand,  and 
ruinous  competition  on  the  other,  and  possibly  to  pre- 
vent exportation,  if  that  should  be  within  the  power  of 
congress.  None  of  these  proposed  measures  has  be- 
come a  law,  although  some  of  them  are  still  pending. 
The  various  technical  journals  have  given  considerable 
space  to  the  discussion,  but  have  added  little  to  the 
solution  of  the  problem.®^ 

In  the  case  of  Duflfield  v.  San  Francisco  Chemical 
Company,  decided  by  Judge  Van  Fleet,  from  which  we 
have  heretofore  quoted,®®  it  was  held  that  the  question 
as  to  whether  under  existing  laws  these  deposits  were 
to  be  located  as  lodes  or  placers  was  one  for  the  land 
department  to  determine,  as  it  involved  the  character 
of  the  land,  and  that  the  only  question  involved  in 
the  case  which  the  court  was  called  upon  to  determine, 

94a  Harry  Lode  Claim,  41  L.  D.  403. 

95  See  article  by  Claude  T.  Eice,  vol.  91,  Engineering  and  Mining 
Journal,  p.  413.  Editorials,  vol.  98.  Mining  &  Scientific  Press,  pp.  836, 
862;  Id.,  vol.  102,  p.  422.  Also  an  article  by  Mr.  Carpel  L.  Breger  in 
"The  Mining  World,"  referred  to  in  the  last-named  editorial.  Editorial 
Mining  &  Scientific  Press,  vol.  104,  p.  849. 

98  198  Fed.  942. 


§  425ai      deposits  appropriated  under  placer  laws.       1004 

it  being  an  adverse  suit  under  section  twenty-three 
hundred  and  twenty-six  of  the  Revised  Statutes,  was 
the  right  of  present  possession.  The  court  decided 
the  case  in  favor  of  the  placer  claimant  on  the  ground 
of  priority,  and  on  the  further  ground  that  the  entry 
of  the  junior  lode  locator  within  the  boundaries  of  the 
placer  claim,  under  the  protest  of  the  placer  claimant, 
was  a  trespass  and  no  rights  could  be  so  initiated. 

If  this  judgment  remains  in  force  when  the  roll  is 
filed  with  the  land  department  and  it  resumes  jurisdic- 
tion,®^ it  can  hardly  evade  the  question.  It  can  hardly 
contend  that  the  judgment  in  favor  of  the  defendant 
has  determined  the  character  of  the  land,  as  this  is  an 
issue  the  determination  of  which  is  specially  confided 
to  the  land  department.  This  is  pointed  out  very  v 
clearly  in  Judge  Van  Fleet's  opinion."* 

The  circuit  court  of  appeals  for  the  eighth  circuit  has 
held  that  the  courts  in  the  first  instance  must  pass  upon 
the  question,  without  undertaking  to  determine  the  ef- 
fect of  such  decisions  upon  the  officers  of  the  land  de- 
partment.®^^ 

It  will  be  borne  in  mind  that  the  situation  in  the  rock 
phosphate  areas  does  not  present  a  case  of  a  lode 
within  a  placer.  The  contending  parties  are  claiming 
the  same  thing, — one  as  a  lode,  the  other  as  a  placer. 
The  land  on  both  sides  of  the  deposit  is  valueless. 

While  holding  no  brief  for  either  side  of  this  contro- 
versy, it  seems  to  the  author  that,  if  left  to  the  depart- 
ment to  determine,  the  following  affords  a  solution: — 

1.  If  the  decisions  by  the  circuit  court  of  appeals  of 
the  eighth  circuit,  in  Webb  v.  American  Asphaltum 

97  Post,  §  765. 

98  Citing  Clipper  Min.  Co.  v.  Eli  Min.  Co.,  194  U.  S.  221,  223,  24 
Sup.  Ct.  Eep.  632,  48  L.  ed.  944,  which  quoted  section  765  of  the  second 
edition  of  this  work. 

98a  San  Francisco  Chemical  Co.  v.  Duffield,  201  Fed.  830, 


1005      SUBJECT  TO  PLACER  LOCATION — POTASH.     §  425b 

Company,®^  and  in  San  Francisco  Chemical  Company 
V.  Duffield,'°°  correctly  state  the  law,  and  it  appears  to 
us  that  there  is  no  escape  from  it,  these  deposits  fall  in 
the  category  of  lodes. 

2.  If  the  original  discoverer,  through  an  honest  mis- 
take, following  rulings  of  the  land  department  as  to  the 
Florida  deposits,  or  under  a  misapprehension  as  to  the 
proper  method  of  location,  locates  in  good  faith  as  a 
placer,  he  should  not  lose  the  benefit  of  his  discovery 
to  the  next  comer  who  seeks  to  relocate  as  a  lode.  He 
should  simply  be  required  to  amend  his  location,  re- 
form his  lines  and  convert  it  into  a  lode  location.  This 
does  no  violence  to  the  spirit  of  the  law,  gives  to  the 
discoverer,  or  first  locator,  the  benefit  of  his  discovery, 
and  deprives  no  one  of  any  substantial  right.  This 
method  is  simply  a  rational  enlargement  of  the  right  to 
amend  a  location  by  casting  off  excess,  which  may  be 
done  regardless  of  an  intervening  locator. 

3.  The  first  locator  locating  as  a  lode  would,  of 
course,  hold  his  claim  as  against  a  later  locator  seek- 
ing to  challenge  the  first  locator's  classification  by 
locating  as  a  placer.  There  are  no  equities  in  favor  of 
the  second  comer. 

If  the  board  of  equitable  adjudication,  the  functions 
of  which  are  explained  in  a  note  to  a  subsequent  sec- 
tion,' might  be  permitted  to  determine  this  question  in 
the  exercise  of  the  equitable  powers  conferred  upon  it, 
we  are  satisfied  that  the  foregoing  solution  would 
appeal  to  that  tribunal. 

§  425b.  Potash. — Potash  is  a  mineral,  and  if  found 
in  deposits  which  could  be  exploited  commercially  at  a 

89  157  Fed.   203,  84  C.  C.  A.   651.     See  discussion  ante,  §  323. 
100  San  Francisco  Chemical  Co.  v.  Duffield,  201  F&d.  830. 
1  §  677. 


§  425b      deposits  appropriated  under  placer  laws. 


1006 


profit  could  be  located  under  the  mining  laws.  At  the 
present  time,  with  the  possible  exception  of  Searles 
Lake,  in  the  desert  region  of  Southern  California, 
where  it  occurs  in  solution  in  the  form  of  brine  in  com- 
bination with  the  chloride  of  sodium  and  other  salts, 
there  are  no  known  surface  deposits  containing  com- 
mercial quantities  of  potash  salts.  It  exists  as  a  con 
stituent  of  certain  eruptive  rocks,  but  is  so  widely 
disseminated  that  it  cannot  be  economically  recovered 
by  any  known  process.  The  brines  and  strata  of  salts 
containing  potash  are  supposed  to  exist  in  the  desert 
regions;  the  concentration  in  low  depressions  without 
outlets  formed  by  a  leaching  process  which  has  been 
going  on  since  the  beginning  of  local  geological  time. 
The  United  States  imports  practically  all  of  its  potash 
from  the  Magdeburg-Halberstadt  region  of  Germany, 
principally  from  Stassfurt.  In  the  form  of  a  nitrate  it 
is  used  for  fireworks,  brown  powders  and  similar  explo- 
sives, and  to  some  extent  as  a  fertilizer. 

President  Taft,  in  a  special  message  to  congress, 
March  26,  1912,  called  attention  to  the  great  value  of 
potassium  salts  as  an  element  in  maintaining  soil  fer- 
tility, which  message  resulted  in  the  passage  of  the  act 
of  August  24,  1912,  amending  the  previous  act  of  June 
25,  1910,^  through  which  the  executive  was  empowered 
to  withdraw  lands  containing  all  classes  of  nonmetal- 
lif erous  substances  from  entry,  occupation,  location  and 
purchase.  This  message  was  sent  on  recommendation 
of  the  geological  survey,  which  has  for  some  time  been 
engaged  in  search  for  deposits  of  this  mineral,  in  the 
desert  regions  of  the  west,  with  the  expectation  of  mak- 
ing important  discoveries.  The  deposits  at  Searles 
Lake,  heretofore  alluded  to,  were  located  some  years 
ago  for  soda  carbonate  or  trona,  but  this  venture  was  not 

2  See  discussion  ante,  §§  200,  200a,  2O0b,  200c. 


1007      SUBJECT  TO  PLACER  LOCATION — POTASH.     §  42 5b 

successful.  Subsequently  they  were  found  to  contain 
potassium  salts,  and  efforts  are  now  being  made  to  re- 
cover and  market  the  product.  Deposits  of  this  mineral 
in  form  of  brine  are  found  in  surface  and  subsurface  de- 
pressions and  also  in  the  form  of  bedded  deposits  in 
connection  with  chloride  of  sodium  (with  which  potash 
is  invariably  associated),  and  may  undoubtedly  be 
located  as  placers  where  the  element  of  profitable  value 
is  found  in  the  potash  and  not  in  the  salt.  Potash  is 
saline  in  character,  and  it  is  contended  in  some  official 
quarters  that  deposits  containing  it  must  be  located 
under  the  law  applicable  to  salines,  which  modifies  the 
placer  law  by  inhibiting  the  locating  of  more  than  one 
claim  by  one  person.  The  saline  law  in  terms  provides 
that ' '  salt  springs,  or  deposits  of  salt  in  any  form, ' '  are 
subject  to  location  under  the  placer  laws.  Construing 
these  terms,  the  land  department  has  said  that — 

Congress  had  in  contemplation  throughout  merely 
common  salt,  or  chloride  of  sodium,  in  its  various 
forms  of  existence  or  deposit.^ 

The  test,  therefore,  as  to  whether  a  deposit  which 
contains  both  salt  and  potash  should  be  located  under 
the  saline  law  limiting  an  individual  to  one  location,  or 
under  the  placer  law,  under  which  the  number  of  loca- 
tions an  individual  may  make  is  unlimited,  will  depend 
on  the  comparative  commercial  value  of  the  two  sub- 
stances. 

If  the  deposit  should  be  found,  as  is  expected  by  the 
geological  survey,  in  horizontal  beds  beneath  the  sur- 
face, the  analogy  of  deep  placers  would  probably 
apply.* 

Potash  occurs  in  another  form  which  is  attracting  a 
great  deal  of  attention.    It  is  a  constituent  of  sea  water, 

3  Territory  of  New  Mexico,  35  L.  D.  1. 
*  Fost,  §  427. 


§  425h      deposits  appropriated  under  placer  laws.       lOO'S 

and  is  secreted  by  tlie  kelp  which  grows  in  enormous 
areas  on  the  seashore  of  the  Pacific,  also  in  certain 
oceanic  latitudes,  as  the  famous  Sea  of  Sargossa.'  The 
government  of  the  United  States  has  caused  extensive 
surveys  to  be  made  of  the  kelp-beds  bordering  the 
Pacific  littoral,  and  the  questions  of  their  conservation 
and  the  control  of  a  possibly  important  industry  are 
being  seriously  considered.  The  beds  of  this  marine 
plant  lie  invariably  outside  of  the  line  of  ordinary  high 
tide,  and  by  far  the  greater  area  lies  within  the  marine 
league,  subject  to  the  jurisdiction  and  control  (except 
for  purposes  of  navigation)  of  the  several  states  bor- 
dering on  the  ocean.  As  to  these  areas,  the  state  alone 
can  regulate  and  control  the  industry.  It  is  in  a  sense 
analogous  to  the  petroleum  deposits  below  the  line  of 
high  tide  at  Summerland,  California,  discussed  in  a 
subsequent  section.® 

As  to  kelp-beds  beyond  the  marine  league  seawards, 
they  are  on  the  highway  of  nations,  and  beyond  the  ex- 
clusive control  of  any  one  government.  The  potash 
industry  might  be  protected  and  conserved  in  the  same 
way  in  which  the  sponge  industry  in  the  Gulf  of  Mexico 
is  protected, — that  is,  by  inhibiting  the  landing  at  any 
port  of  entry  in  the  United  States  of  any  sponges  taken 
at  certain  particular  seasons  of  the  year  in  certain  lati- 
tudes beyond  the  jurisdiction  of  the  United  States.^ 

The  indiscriminate  harvesting  of  kelp  at  all  seasons 
would  prevent  its  reproduction  and  ultimately  destroy 
the  industry.  To  effectually  conserve  and  regulate  it, 
it  would  require  the  co-operation  of  both  the  state  and 
nation.* 

5  It  is  said  that  one  ton  of  air-dried  kelp  will  yield  five  hundred 
pounds  of  pure  potash  and  three  pounds  of  iodine. 

6  Post,  §  429. 

7  See  The  Abby  Dodge  v.  United  States,  223  U.  S.  166,  167,  32  Sup. 
Ct.  Rep.  310,  56  L.  ed.  390. 

8  Senate  Document  No.   190,   6i2d  Congress,   2d   Session,   "F§rtilizer 


1009  SUBJECT   TO   PLACER   LOCATION — TAILINGS.  §  426 

§  426.  Tailings. — To  suffer  tailings  to  flow  where 
they  may,  without  obstructions  to  confine  them,  is 
equivalent  to  their  abandonment.®  If  they  lodge  on 
the  lands  of  another,  they  are  considered  as  an  accre- 
tion, and  belong  to  him.^°  If  they  accumulate  on 
vacant  and  unappropriated  public  land,  it  has  been  the 
custom  in  the  mining  regions  of  the  west  to  recognize 
the  right  of  the  first-comer  to  appropriate  them  by  pro- 
ceedings analogous  to  the  location  of  placer  claims." 

As  was  said  by  the  supreme  court  of  Nevada, — 

Although  not  a  mining  claim  within  the  strict 
meaning  of  the  expression  as  generally  used  in  this 
country,  a  "tailings  claim"  is  so  closely  analogous 
to  it  that  the  propriety  of  subjecting  the  acquisition 
and  maintenance  of  the  possession  of  it  to  the  rules 
governing  the  acquisition  of  the  right  to  a  strictly 
mining  claim  at  once  suggests  itself  .^^ 

The  land  department  has  recognized  this  possessory 
right  and  permitted  entries  to  be  made  of  lands  con- 
taining beds  of  tailings,  under  the  laws  applicable  to 
placers.  There  are  no  adjudicated  cases  in  the  reports 
of  department  decisions  upon  this  subject  which  have 
come  under  our  observation,  but  we  have  knowledge 
of  several  instances  where  patents  for  this  class  of 
claims  have  been  issued  under  the  mining  laws.^^ 

Eesources  of  the  United  States,"  contains  a  vast  amount  of  reliable  in- 
formation on  the  subject. 

9  Jones  T.  Jackson,  9  Cal.  238,  245,  14  Morr.  Min.  Rep.  72;  Eitter  v. 
Lynch,  123  Fed.  930. 

10  Id. 

11  Dougherty  t.  Creary,  30  Cal.  291,  89  Am.  Dec.  116,  1  Morr.  Min, 
Rep.  35;   Ritter  v.  Lynch,  123  Fed.  930,  931. 

12  Rogers  v.  Cooney,  7  Nev.  213,  14  Morr.  Min.  Rep.  85. 

IS  In  Rhodes  M.  Co.  v.  Belleville  Placer  M.  Co.,  32  Nev.  230,  106  Pac. 
561,  118  Pac.  813,  plaintiff  asserted  rights  to  a   deposit  of  tailings  on 
land  patented  by  the  stat^  to  the  plaintiff,  who  also  asserted  title  to 
Lindley  on  M. — 64 


§  427  DEPOSITS  APPROPRIATED  UNDER  PLACER  LAWS.  1010 

§  427.  Subterranean  gravel  deposits  in  ancient 
river-beds. — Subterranean  channels  of  ancient  streams 
into  which  beds  of  auriferous  gravels  have  been  depos- 
ited are  sometimes  called  deep,  or  ancient,  placers. 
The  most  noted  of  these  are  found  in  California.^* 

These  gravel-beds  lie  upon  a  ''bedrock"  which,  at 
some  period  of  geological  history,  formed  the  bed  of  an 
ancient  river.  At  times  the  deposits  are  cemented. 
They  are  usually  immediately  overlain  by  a  formation 
of  clay  gouge,  and  on  this  clay  covering  is  a  capping  of 
lava,  sometimes  hundreds  of  feet  in  thickness.  These 
subterranean  deposits  are  reached  by  means  of  tunnels 
to  the  bedrock,  and  thence  following  the  meanderings 
of  the  channel.  These  deposits  certainly  occupy  a 
fixed  position  in  the  mass  of  the  mountain,  although 
they  do  not  fall  within  the  popular  definition  of  lodes, 
or  veins.  The  land  department,  at  an  early  period, 
classified  them  as  "placers,"  and  patents  have  uni- 

the  tailings  through  an  execution  sale,  in  a  suit  brought  against  the 
mining  company  which  deposited  the  tailings.  Defendant  located  the 
land  under  the  placer  laws,  claiming  that  under  the  doctrine  of  Rogers 
V.  Cooney  the  tailings  mineralized  the  land,  and  under  the  provisions  of 
the  state  patent  reserving  the  mineral  and  giving  to  others  than  the 
patentee  the  right  to  prospect  and  locate  mines  on  the  land,  and  under 
the  decision  in  Stanley  v.  Mineral  Union,  26  Nev.  55,  63  Pac.  59,  60, 
defendant  was  entitled  to  hold  the  tailings. 

Plaintiff  obtained  a  preliminary  injunction  against  defendant  inhib- 
iting the  removal  of  the  tailings.  On  appeal  the  supreme  court  upheld 
the  injunction,  on  the  theory  that  the  questions  of  law  and  fact  were 
important  and  doubtful,  and  there  was  no  abuse  of  discretion  in  grant- 
ing the  injunction. 

1*  For  interesting  and  valuable  discussion  on  the  subject  of  these 
deep  gravels,  see  monograph  of  Mr.  Ross  E.  Browne,  "The  Ancient 
River  Beds  of  the  Forest  HiU  Divide,"  California  State  Mineralogist's 
report  (1890),  p.  435,  also  a  monumental  work,  "The  Tertiary  Grav- 
els of  the  Sierra  Nevada  of  California,"  by  Waldemar  Lindgren, 
Professional  Paper  73,  U.  S.  Geological  Survey. 


1011  GR.VVEL    DEPOSITS    IN   NAVIGABLE   STREAMS.  §  427 

formly  been  issued  upon  locations  of  this  class  of 
deposits  made  under  the  placer  laws." 

The  supreme  court  of  California  has  upheld  this 
classification."' 

The  inconvenience  of  this  rule  will  be  shown  when 
we  come  to  consider  the  requirements  as  to  a  discovery 
within  the  limits  of  each  placer  location.  But  this  is 
an  argument  which  should  be  addressed  to  congress 
in  order  that  this  class  of  deposits  may  receive  sep- 
arate consideration  and  be  relieved  from  conditions 
which  are  not  unreasonable  when  applied  to  superficial 
placers,  but  which  become  exceedingly  onerous  and 
burdensome  when  applied  to  these  subterranean  de- 
posits. 

The  general  situs  of  these  ancient  rivers  in  the  aurif- 
erous belt  in  California  is  well  recognized.  Their 
existence  is  a  proved  fact  and  not  a  mere  theory." 
They  are  classified  as  mineral  lands  by  the  land  depart- 
ment, applications  to  enter  them  under  agricultural 
laws  having  been  refused.'*  This  fact,  however,  is  not 
tantamount  to  a  discover}^  within  the  limits  of  a  pro- 
posed placer  location.  This  could  only  be  accom- 
plished either  by  drifting  in  the  channel  or  by  drilling 
from  the  surface. 

The  secretary  of  the  interior  has  held  that  sand  rock 
or  sedimentary  sandstone  formation  in  the  general 
mass  of  the  mountain  bearing  gold  is  rock  in  place  bear, 
ing  mineral,  and  constitutes  a  vein  or  lode,  within  the 
purview  of  the  statute,  which  can  be  located  and  entered 

15  Commissioner's  Letter,  Copp's  Min.  Dec.  78. 

16  Gregory  v.  Pershbaker,  73  Cal.  109,  115,  14  Pac.  401,  403. 

17  Waldemar  Lindgren  in  Colfax  Folio  of  the  Geological  Survey. 

IS  Dixon  V.  Taylor,  May  2,  1907,  Decision  by  Secretary  Garfield,  not 
officially  published.     See  vol.  95,  Mining  and  Scientific  Press,  p.  123. 


§  428  DEPOSITS  APPROPRIATED  UNDER  PLACER  LAWS.  1012 

only  under  the  law  applicable  to  lode  deposits.^®  The 
distinction  between  this  class  of  deposits  and  the  deep 
cemented  gravels  is  not  altogether  obvious. 

§  428.  Beds  of  streams. — As  to  whether  gravel  de- 
posits lying  on  the  beds  of  watercourses  may  be  appro- 
priated under  the  placer  laws  will  depend  on  circum- 
stances. If  the  stream  is  navigable,  certainly  no  right 
to  appropriate  its  bed  for  mining  purposes  under  the 
federal  mining  laws  can  be  sanctioned. 

The  beds  of  such  rivers  and  their  banks  as  far  as 
high-water  mark,  in  some  states  as  far  as  low-water 
mark,^°  belong  to  the  state,  and  not  to  the  federal  gov- 
ernment. They  were  not  granted  by  the  constitution 
to  the  United  States,  but  were  reserved  to  the  states 
respectively,  and  the  new  states  have  the  same  rights  of 
sovereignty  and  jurisdiction  with  regard  to  this  class 
of  lands  as  the  original  states. ^^ 

The  right  of  the  United  States  to  the  public  lands, 
and  the  power  of  congress  to  make  all  needful  rules  and 
regulations  for  the  sale  and  disposition  thereof,  con- 
ferred no  power  to  grant  the  beds  of  navigable 
streams." 

A  grant  from  the  government  for  land  bordering  on 
a  navigable  stream  (i.  e.,  one  that  is  navigable  in  fact) 
can  extend  no  farther  than  the  edge  of  the  stream." 

The  state  may,  if  it  choose,  resign  to  a  riparian  pro- 
prietor rights  which  properly  belong  to  it  in  its  sover- 

i»  In  re  Palmer,  38  L.  D.  294. 

20  Hull  V.  Hobart,  186  Fed.  426,  429,  108  C.  C.  A.  348. 

21  Pollard  V.  Hagan,  3  How.  212,  224,  11  L.  ed.  565  j  Pollard's  Heirs 
V.  Kibbe,  9  How.  470,  477,  13  L.  ed.  220. 

22  Pollard  V.  Hagan,  3  How.  212,  223,  11  L.  ed.  565. 

23  Packer  v.  Bird,  137  U.  S.  661,  669,  11  Sup.  Ct.  Eep.  212,  34  L. 
ed.  819. 


1013  GRAVEL    DEPOSITS    IN   NAVIGABLE  STREAMS.  §  428 

eign  capacity,^*  but  this  does  not  sanction  a  conveyance 
from  the  general  government  which  would  operate  to 
divest  the  rights  of  the  state. 

A  mining  claim  located  upon  public  lands  traversed 
by  a  watercourse  which  is  navigable  in  fact  could  only 
extend  to  the  edge  of  the  stream  at  its  high-water  or 
low-water  stage,  depending  upon  the  laws  of  the  state 
where  the  property  is  situated,  as  the  rule  as  to  the 
water  boundary  is  not  the  same  in  all  the  states.  The 
beds  of  such  streams  are  not  public  lands. "^ 

In  general,  the  meander  line  is  not  a  boundary  and 
the  grantee  takes  to  the  water's  edge.^® 

While  congress  exercises  legislative  control  over  the 
territories  and  other  political  subdivisions  not  organ- 
ized as  states,  it  holds  lands  under  the  navigable 
streams  in  the  public  domain  in  trust  for  the  future 
state,  and  it  has  always  been  the  policy  of  the  general 
government  not  to  impair  the  right  of  the  ultimate 
beneficiar}"  by  any  i:)ermanent  encumbrance  or  transfer 
of  this  class  of  lands.  The  rule  on  this  subject  is  the 
same  as  that  applied  to  lands  below  ordinary  high  tide 
in  the  case  of  tidal  waters,  a  subject  discussed  in  the 
next  section. 

The  state  may  grant  temporary  privileges,  or  per- 
haps permanent  rights,  of  dredging  or  carrying  on 
other  mining  operations  in  the  beds  of  navigable 
waters;  provided,  that  such  operations  do  not  interfere 

24  Packer  v.  Bird,  137  U.  S.  661,  669,  11  Sup.  Ct.  Eep.  212,  34 
L.  ed.  819. 

25  Argillite  Ornamental  Stone  Co.,  29  L.  D.  585;  In  re  Fitten,  29 
L.  D.  451,  453;  "In  re  Victor  H.  Johnson,  33  L.  D.  593. 

26  Johnson  v.  Hurst,  10  Idaho,  308,  77  Pac.  784,  788,  where  the 
question  is  fully  discussed  and  authorities  reviewed.  See,  also,  French 
Glenn  Live  Stock  Co.  v.  Marshall,  28  L.  D.  444;  Hendricks  v.  Feather 
Eiver  Canal  Co.,  138  Cal.  423,  71  Pac.  496,  497;  Kirby  v.  Potter,  138 
CaL  686,  72  Pac.  338,  339. 


§  428  DEPOSITS  APPROPRIATED  UNDER  PLACER  LAWS.  1014 

"with  the  public  rights  of  navigation  or  the  private 
rights  of  riparian  owners.  But  this  is  a  subject  which 
is  not  necessary  to  be  here  discussed." 

As  to  the  beds  of  non-navigable  streams,  there  is  no 
reason  why  the  gravel  deposits  lying  on  them  may  not 
be  appropriated,^^  as  the  banks  may  (for  it  is  there 
that  placers  are  usually  found),  if  the  title  to  the  bed 
resides  in  the  general  government  and  is  clear  of  prior 
appropriations.  No  subsequent  appropriation  of  the 
bed  of  a  non-navigable  stream  can  interfere  with  the 
rights  of  a  prior  proprietor  bordering  on  the  stream 
or  having  a  right  of  access  to  it  for  any  lawful  purpose, 
e.  g.,  diversion  of  appropriated  water.  In  otlier  words, 
the  question  to  be  considered  is  whether  the  bed  sought 
to  be  appropriated  is  a  part  of  the  public  domain  or 
not. 

As  to  what  rights  accrue  to  a  placer  locator  to  the 
water  of  a  non-navigable  stream  found  within  the  limits 
of  the  location,  no  definite  rule  can  be  stated.  It  will 
depend  upon  the  locality  in  which  the  claim  is  situated. 
If  in  a  state  where  the  ultra  doctrine  of  the  common  law 
prevails,  his  rights  to  the  water  would  be  limited  to 
those  of  a  riparian  proprietor.  If  in  a  state  where  the 
riparian  doctrines  are  abrogated  or  declared  never  to 
have  been  adopted,  his  right  to  use  the  water  would  de- 
pend upon  its  proper  appropriation  for  that  purpose, 
and  the  mere  location  of  the  placer  claim  would  not  of 
itself  confer  any  right  to  the  water.^* 

27  Consult  Coosaw  M.  Co.  v.  South  Carolina,  144  U.  S.  550,  12  Sup. 
Ct.  Eep.  689,  36  L.  ed.  537;  State  v.  Black  Eiver  Phosphate  Co.,  32  Fla. 
82,  13  South.  640,  21  L.  R.  A.  189.  See  article  by  Dr.  Rossiter  W.  Ray- 
mond in  Engineering  and  Mining  Journal,  vol.  65,  p.  276. 

28  Rablin's  Placer,  2  L.  D.  764. 

29  Text  quoted  and  approved  in  Snyder  v.  Gold  Dredging  Co.,  181 
Fed.  62,  65,  104  C.  C.  A.  136.  See,  also.  Van  Dyke  v.  Midnight  Sun 
M.  &  D.  Co.,  177  Fed.  85,  91,  100  C.  C.  A.  503. 


1015  LANDS  UNDER  TIDE-WATERS.  §  429 

Judge  Hallett  has  said,  with  regard  to  a  case  arising 
in  Colorado,  that 

A  placer  location  ex  vi  termini  imports  an  appro- 
priation of  all  waters  covered  by  it  in  so  far  as  such 
waters  are  necessary  for  working  the  mine.  This  is 
true,  especially  when  the  location  covers  both  banks 
of  the  stream,  because  there  is  a  reasonable  presump- 
tion that  the  locator  intends  to  work  the  channel  and 
the  banks  wherever  he  may  find  pay  dirt.     A  placer 

claim  cannot  be  worked  without  water The 

title  to  the  water  is  the  same  as  the  title  to  the  land.'" 

This  rule  was  followed  by  the  district  court  in 
Alaska,"  but  was  condemned  by  the  circuit  court  of 
appeals,  eighth  circuit,  as  not  being  supported  by  the 
better  reasoning."  The  circuit  court  of  appeals  of  the 
ninth  circuit,  in  a  case  arising  in  Alaska,  upholds  the 
doctrine  that  no  right  to  the  water  of  a  stream  accrues 
to  the  locator  of  a  mining  claim  crossing  such  stream.^' 
The  land  department  has  said  that  the  rights  of  the 
placer  locator  to  the  water  in  such  case  is  simply 
''usufructuary.'"*  This  question,  however,  is  hardly 
germane  to  the  subject  presently  under  consideration. 
Its  solution  can  only  be  arrived  at  from  a  careful  in- 
vestigation of  the  water  laws  of  the  various  states. 
For  this  purpose  treatises  on  the  law  of  water  should 
be  consulted.^^ 

§  429.  Lajids  under  tide-waters. — There  is  no  prin- 
ciple involved  in  the  consideration  of  the  public  land 

80  Scbwab  v.  Bean,  86  Fed.  41. 

81  Madigan  v.  Kongarok  M.  Co.,  3  Alaska,  63. 

32  Snyder  v.  Colorado  Gold  Dredging  Co.,  181  Fed.  62,  68.  104 
C.  C.  A.  136. 

83  Van  Dyke  v.  Midnight  Sun  M.  &  D.  Co.,  177  Fed.  85,  91,  100 
C.  C.  A.  503. 

34  Rablin's  Placer,  2  L.  D.  764. 

36  See  1  Wiel  on  Waters,  3d  ed.,  p.  141,  note  20. 


§  429  DEPOSITS  APPROPRIATED  UNDER  PLACER  LAWS.  1016 

system  better  settled  or  more  clearly  enunciated  tlian 
that  lands  under  tidal  waters,  and  below  the  line  of 
ordinary  high  tide,  are  not  ''public  lands."  When  a 
state  bordering  upon  these  waters  is  admitted  into 
the  Union  it  becomes,  by  virtue  of  its  sovereignty,  the 
owner  of  all  lands  extending  seaward  so  far  as  its 
municipal  dominion  extends, — i.  e.,  in  landlocked  bays 
from  headland  to  headland  and  from  the  line  of  ordi- 
nary high  tide  on  the  shore  of  the  open  ocean  seaward 
to  the  distance  of  three  miles,  or  a  marine  league.  This 
same  rule  applies  to  islands  off  the  coast  which  are 
within  the  municipal  control  of  the  state.  This  owner- 
ship, however,  is  subject  to  the  public  right  of  naviga- 
tion. 

As  to  lands  of  this  character  forming  a  part  of  the 
territory  acquired  by  the  federal  government  under 
treaties  of  cession  and  purchase  which  for  the  time 
being  are  not  included  within  the  boundaries  of  any 
state,  but  are  either  within  territories  (such  as  Hawaii, 
Porto  Eico  and  Alaska),  or  insular  dependencies  with 
a  temporary  form  of  government  specially  devised  to 
meet  the  exigencies  of  the  occasion  (such  as  the  Philip- 
pine islands),  the  United  States  holds  them  in  trust  for 
the  benefit  of  such  states  as  may  be  ultimately  carved 
out  of  them.  With  reference  to  this  class  of  lands 
occupying  this  status,  the  supreme  court  of  the  United 
States  has  expressed  itself  as  follows : — 

The  United  States,  while  they  hold  the  country  as 
a  territory,  having  all  the  powers  both  of  national 
and  of  municipal  government,  may  grant  for  appro- 
priate purposes  titles  or  rights  in  the  soil  below  high- 
water  mark  of  tide-waters.  But  they  have  never 
done  so  by  general  laws ;  and,  unless  in  some  case  of 
international  duty  or  public  exigency,  have  acted 
upon  the  policy,  as  most  in  accordance  with  the  inter- 
est of  the  people  and  with  the  object  for  which  the 


1017  LAJJDS  UNDER  TmE-WATERS.  §  429 

territories  were  acquired,  of  leaving  the  administra- 
tion and  disposition  of  the  sovereign  rights  in 
navigable  waters  and  in  the  soil  under  them,  to  the 
control  of  the  states,  respectively,  when  organized 
and  admitted  into  the  Union.^® 

It  follows  from  this  doctrine  that  tide-lands  border- 
ing a  territory  cannot  be  acquired  in  private  ownership 
under  any  of  the  general  laws  providing  for  the  dis- 
posal of  public  lands,  in  which  category  are  the  federal 
mining  laws.  A  mining  claim  cannot  be  so  located  as 
to  extend  below  the  line  of  ordinary  high  tide." 

The  discovery  in  1898  of  the  auriferous  sands  on  the 
southern  shore  of  the  Seward  peninsula  in  Alaska, 
washed  by  the  Bering  Sea,  attracted  an  army  of  for- 
tune-hunters, and  the  beach  in  the  immediate  vicinity 
of  Cape  Nome  was  the  scene  of  great  mining  activity. 
The  federal  mining  laws  had  been  extended  to  Alaska, 
but  as  the  gold-bearing  sands  were  found  to  exist  below 
the  line  of  ordinary  high  tide,  there  was  practically  no 
law  which  permitted  their  appropriation  or  exploita- 
tion below  that  line.  As  in  the  case  of  the  discovery  of 
gold  in  California  at  a  time  when  there  was  no  federal 
law  whatever  on  the  subject  of  acquiring  public  min- 
eral lands,  the  miners  adopted  rules  and  regulations 
defining  the  manner  of  acquiring,  possessing,  and  en- 
joying mining  privileges  on  beach  claims.  As  it  was 
conceived  that  a  license  could  be  obtained  from  the 
secretary  of  war,  whose  permit  was  necessary  as  a  pre- 
requisite to  the  maintenance  of  structures  in  the 
navigable  waters  of  the  United  States,  such  license  was 

S8  Shively  v.  Bowlby,  152  U.  S.  1,  58,  14  Sup.  Ct.  Rep.  548,  38  L. 
ed.  331;  San  Francisco  Savings  Union  v.  R.  G.  R.  Petroleum  &  M.  Ck)., 
144  Cal.  134,  103  Am.  St.  Rep.  72,  1  Ann.  Cas.  182,  77  Pac.  823,  66 
L.  R.  A.  242;  Kneeland  v.  Korter,  40  Wash.  359,  82  Pac.  608,  G09,  1 
L.  R.  A.,  N.  S.,  745,  and  numerous  cases  cited. 

37  In  re  Logan,  29  L.  D.  395. 


§  429  DEPOSITS  APPROPRIATED   UNDER  PLACER  LAWS.  1018 

asked  and  in  many  instances  obtained.  These  licenses, 
of  course,  conferred  no  rights  save  immunity  from 
prosecution  for  carrjdng  on  mining  operations  in  navi- 
gable waters.  The  roadstead  was  an  open  one.  there 
were  no  harbor  lines,  and  the  permit  was  granted  when- 
ever applied  for.  These  conditions  were  recognized  by 
congress,  and  provisions  were  inserted  in  the  Alaska 
code^®  governing  the  exploration  and  mining  of  these 
beach  deposits  between  low  and  mean  high  tide  on  the 
shores,  bays,  and  inlets  of  Bering  Sea,  and  authorizing 
mining  below  the  line  of  low  tide  under  such  regula- 
tions as  might  be  prescribed  by  the  secretary  of  war. 
This  statute  is,  of  course,  local  in  its  application.  The 
code  specifically  sanctioned  the  adoption  of  local  rules 
governing  the  size  of  the  claims,  and  other  details  not  ^ 
necessary  to  be  here  noted.  The  act  does  not  contem- 
plate that  these  beach  claims  below  the  line  of  ordi- 
nary high  tide  shall  be  patented,  the  privilege  being 
limited  to  exploration  and  mining  for  gold. 

Off  the  coast  of  California,  at  Summerland,  in  Santa 
Barbara  county,  petroleum  wells  are  drilled  in  the  ocean 
below  the  line  of  ordinary  high  tide,  and  large  quan- 
tities of  crude  oil  are  produced.  The  secretary  of  war 
has  granted  the  same  class  of  permits  as  noted  in  the 
case  of  Cape  Nome,  which  are,  as  heretofore  observed, 
ineffectual  as  conferring  any  rights  as  against  the 
littoral  owner.^®  The  title  to  the  soil  is  in  the  state  of 
California.  The  state  might  dispose  of  it  if  such 
disposal  and  the  purposes  for  which  it  was  made  might 
be  effected  without  detriment  to  the  public  right  of 
navigation.*"     There  is  no  permission  granted  by  the 

38  §  26.     See  Appendix. 

39  San  Francisco  Savings  Union  v.  E.  G.  E.  Petroleum  Co.,  144  Cal. 
134,  103  Am.  St.  Eep.  72,  1  Ann.  Cas.  182,  77  Pac.  823,  66  L.  E.  A.  242. 

40  Messenger  v.  Kingsbury,  158  Cal.  611,  112  Pac.  65,  66.  By  act  of 
the  legislature  of  California  passed  March  25,  1909  (Pol.  Code,  §  3443a), 


1019 


LANDS   UNDER  TIDE-WATERS. 


§429 


state,  but  it  has  not  interfered,  and  the  occupants  have 
not  been  molested  by  the  only  authority  which  pos- 
sesses any  power  in  the  premises — the  state  of  Cali- 
fornia. Some  conflicts  have  arisen  with  the  littoral 
owners.  It  has  been  held  that  the  erection  of  obstruc- 
tions below  ordinary  high-water  mark  in  front  of  the 
land  of  a  littoral  proprietor,  which  obstructions  inter- 
fere with  and  prevent  access  to  and  use  of  the  ocean 
highway  by  the  littoral  proprietor,  constitutes  a  pri- 
vate nuisance  as  to  him  and  he  may  maintain  an  action 
to  abate  it.*^ 

We  have  heretofore  alluded  to  the  existence  of  exten- 
sive kelp-beds  growing  in  the  sea  floor  in  the  Pacific 
within  the  marine  league,  and  the  possibility  that  the 
industry  of  harvesting  the  marine  flora  for  its  potash 
content  may  be  of  large  importance.  State  legislation 
is  requisite  to  regulate  all  industrial  activities  in  tidal 
waters  within  the  marine  league." 


Aeticle  II.    The   Location   and   Its   Require- 
ments. 


S  432.  Acts  necessary  to  consti- 
tute a  valid  placer  loca- 
tion under  the  Revised 
Statutes,  in  the  absence 
of     supplemental    state 


legislation  and  local 
district  rules. 
433.  Requisites  of  a  valid 
placer  location  wherq 
supplemental  state  leg- 
islation exists. 


lands  between  high  and  low  water  mark  and  over  which  the  tide  ebbs 
and  flows  are  withheld  from  sale. 

41  San  Francisco  Savings  Union  v.  R.  G.  R.  Petroleum  Co.,  144  Cal. 
134,  103  Am.  St.  Kep.  72,  1  Ann.  Cas.  182,  77  Pac.  823,  66  L,  R.  A.  242. 

42  Ante,  §  425b. 


§  432  THE  LOCATION  AND  ITS  REQUIREMENTS.  1020 

§  432.  Acts  necessary  to  constitute  a  valid  placer 
location  under  the  Revised  Statutes,  in  the  absence  of 
supplemental  state  legislation  and  local  district  rules. 

Generally  speaking,  the  acts  required  to  be  performed 
in  order  to  complete  a  valid  location  under  the  federal 
laws  applicable  to  placers  are  the  same  as  are  required 
in  cases  of  lode  locations.*^ 

Section  twenty-three  hundred  and  twenty-nine  of  the 
Revised  Statutes  provides: — 

Claims  usually  called  placers,  including  all  forms 
of  deposit,  excepting  veins  of  quartz,  or  other  rock  in 
place,  shall  be  subject  to  entry  and  patent  under  like 
circumstances  and  conditions  as  are  provided  for 
vein  or  lode  claims. 

The  purpose  of  this  section  is  apparently  to  place  the 
location  of  placer  claims  on  an  equality  both  in  pro- 
cedure and  rights  with  lode  claims.** 

This  has  been  construed  to  mean: — 

(1)  That  there  must  be  a  discovery  upon  which  to 
base  the  location;*" 

(2)  The  location,  if  on  unsurveyed  lands,  must  be 
marked  upon  the  ground  so  that  its  boundaries  can  be 
readily  traced.     If  on  surveyed  land,  where  the  loca- 
ls McCann  v.  McMillan,  129  Cal.  350,  62  Pac.  31,  33. 

**  Clipper  M.  Co.  v.  Eli  M.  &  L.  Co.,  194  U.  S.  220,  227,  24  Sup. 
Ct.  Eep.  632,  48  L.  ed.  944. 

45  McDonald  v.  Montana  Wood  Co.,  14  Mont.  88,  43  Am.  St.  Rep.  616, 
35  Pac.  668,  669;  Lincoln  Placer,  7  L.  D.  81;  Ferrell  v.  Hoge,  18  L.  D. 
81,  19  L.  D.  568;  Louise  M.  Co.,  22  L.  D.  663;  Rhodes  v.  Treas,  21 
L.  D.  502;  S.  P.  R.  R.  v.  Griffin,  20  L.  D.  485;  Reins  v.  Murraj,  22 
L.  D.  409;  Union  Oil  Co.,  23  L.  D.  222;  Bay  v.  Oklahoma  Southern 
Gas  &  Oil  Co.,  13  Okl.  425,  73  Pac.  936,  938;  Miller  v.  Chrisman,  140 
Cal.  440,  98  Am.  St.  Rep.  63,  73  Pac.  1083,  1084,  74  Pac.  444;  affirmed, 
Chrisman  v.  Miller,  197  U.  S.  313,  25  Sup.  Ct.  Rep.  468,  49  L.  ed.  770; 
Weed  T.  Snook,  144  Cal.  440,  77  Pac.  1023,  1025 ;  Whiting  y.  Straup,  17 
Wyo.  1,  129  Am.  St.  Rep.  1093,  95  Pac.  849,  853;  Phillips  v.  Brill,  17 
Wyo.  26,  95  Pac.  856,  859 ;  Merced  Oil  Co.  v.  Patterson,  153  Gal.  624,  96 
Pac.  90;  S.  C,  second  appeal,  102  Cal.  358,  122  Pac.  950,  951. 


1021       REQUISITES  OF  VALID  PLACER  LOCATION.       §  433 

tion  is  by  legal  subdivisions  and  there  is  no  state 
statute  on  the  subject,  the  question  as  to  whether  physi- 
cal markings  on  the  ground  are  necessary  is  contro- 
verted, and  the  authorities  are  not  harmonious.  This 
subject  will  be  discussed  in  subsequent  sections/® 

As  was  said  in  a  previous  section,  referring  to  lode 
claims,  no  notice  need  be  posted,  no  particular  kind  of 
marking  is  required,  nor  is  any  record  made  necessary. 
No  preliminary  development  work  is  prescribed.  In 
the  absence  of  supplemental  state  or  local  regulation 
the  discovery  and  marking  the  boundaries  perfect  the 
location.*^ 

§  433.  Requisites  of  a  valid  placer  location  where 
supplemental  state  legislation  exists. — As  in  the  case  of 
lodes,^^  most  of  the  states  within  the  purview  of  this 
treatise  have  enacted  laws  prescribing  that  certain  acts 
be  performed  in  order  to  perfect  a  placer  location,  in 
addition  to  the  requirements  of  the  federal  law.  These 
supplemental  provisions  vary  in  the  different  states. 
Taking  the  Colorado  statutes  as  a  type  (although  the 
laws  of  some  of  the  states  are  more  elaborate),  the  fol- 
lowing acts  are  required  to  complete  a  location  of  this 
class: — 

(1)  Discovery; 

(2)  Posting  a  notice  of  location; 

(3)  Marking  the  boundaries  in  a  specified  manner; 

(4)  Recording  a  certificate  of  location. 

As  these  features  are  common  to  both  lode  and  placer 
claims,  what  we  have  heretofore  said  with  reference  to 
the  necessity  of  complying  with  these  conditions/'  the 

"  Post,  §§  454,  455. 
<7  Ante,  §  328. 

48  Ante,  §  329. 

49  Ante,  §  329. 


§  437  THE  DISCOVERT.  1022 

order  in  whicli  the  acts  may  be  performed,^*'  and  the 
effect  of  locations  made  by  agents,*^  need  not  be  herp' 
repeated. 

Article  III.    The  Discovery. 


§  437.  Rules  governing  discovery 
the  same  as  in  lode  lo- 
cations. 

§  438.  Unit  of  placer  locations 
—  Discovery  in  each 
twenty-acre  tract. 


§  438a.  Boundary  line  discoveries. 

§  438b.  Conveyances  of  part  of 
location  prior  to  discov- 
ery. 

§  438c.  Unit  of  placer  location  in 
Alaska. 


§  437.  Rules  governing  discovery  the  same  as  in 
lode  locations. — The  subject  of  discovery  has  been  fully 
considered  when  dealing  with  lode  locations  in  a  pre- 
vious article.^^  The  principles  there  announced  apply 
with  equal  force  to  placers,  so  far  as  the  character  of 
the  deposits  will  admit.  Discovery  is  just  as  essential 
in  case  of  placers  as  it  is  in  lode  locations.*^^  The  su- 
preme court  of  California  at  one  time  expressed  the 
view  that  neither  the  federal  laws  nor  the  local  rules 
and  customs  of  miners  required  that  a  discovery  should 
be  made  as  a  prerequisite  to  a  placer  location/*  but 
this  was  obviously  a  mere  dictum;  it  was  also  opposed 
to  the  current  of  judicial   authority,   as   was   subse- 

60  Ante,  §  330. 

61  Ante,  §  331. 

62  Ante,   §§   335-339. 

63  Nevada  Sierra  Oil  Co.  v.  Miller,  97  Fed.  681,  688;  Nevada  Sierra 
Oil  Co.  V.  Home  Oil  Co.,  98  Fed.  673,  676;  OUve  L.  &  D.  Co.  v.  01m- 
stead,  103  Fed.  568,  573;  Cosmos  Exploration  Co.  v.  Gray  Eagle  Co., 
112  Fed.  4,  14,  50  C.  C.  A.  79;  Miller  v.  Chrisman,  140  Cal.  440,  98 
Am.  St.  Rep.  63,  73  Pac.  1083,  1084,  74  Pac.  444;  affirmed,  197  U.  S. 
313,  320,  25  Sup.  Ct.  Rep.  468,  49  L.  ed.  770;  New  England  &  Coalinga 
Oil  Co.  V.  Congdon,  152  Cal.  211,  92  Pac.  180,  181;  Whiting  v.  Straup,. 
17  Wyo.  1,  129  Am.  St.  Rep.  1093,  95  Pac.  849,  853 ;  Steele  v.  Tanana 
Mines  R.  Co.,  148  Fed.  678,  679,  78  C.  C.  A.  412;  Garabaldi  v.  Grillo, 
17  Cal.  App.  540,  120  Pac.  425;   Hall  v.  McKinnon,  193  Fed.  572,  576. 

64  Gregory  v.  Pershbaker,  73  Cal.  109,  117,  14  Pac.  401. 


1023  DISCOVERY  ESSENTIAL  TO  PLACER  LOCATIONS.  §  437 

quently  so  determined  by  the  same  court."  The  land 
department  has  uniformly  held  that  discovery  is  essen- 
tial in  the  case  of  placers,  going  so  far  at  one  time  as 
to  hold  that  such  discovery  was  essential  in  each 
twenty-acre  tract  within  a  location  of  one  hundred  and 
sixty  acres  located  by  an  association  of  persons. 

In  the  case  of  ordinary  surface  deposits  such  as  the 
auriferous  gravels,  we  encounter  no  serious  difficulty 
in  determining  the  sufficiency  of  a  given  discovery. 
The  existence  of  the  deposit  is  obvious,  and  the  only 
inquiry  is  as  to  its  commercial  value  or  the  extent  of 
its  mineral  contents  as  justifying  the  expenditure  of 
time  and  money  in  its  development  and  exploitation. 
AVhere,  however,  the  deposit  which  it  is  desired  to 
locate  is  beneath  the  surface  and  is  found  at  consider- 
able depth,  so  that  discovery  in  its  technical  sense,  at 
or  near  the  surface,  is  impracticable,  the  courts  have 
been  somewhat  embarrassed  in  applying  the  law. 
While  leaning  sympathetically  with  the  first  appro- 
priator,  they  have  never  gone  so  far  as  to  say  that  a 
discovery  may  be  dispensed  with. 

The  best  known  of  these  deposits  are  the  ancient 
river  channels  which  are  overlain  by  lava  or  other 
capping  many  hundreds  of  feet  in  thickness,  some  of 
the  important  gravel  deposits  in  Alaska  which  under- 
lie ''muck"  or  detrital  accumulations  of  varying 
thickness,  and  petroleum  and  natural  gas,  which  are 
found  at  great  depths,  at  times  several  thousands  of 
feet  below  the  surface.  With  the  exception  of  fugitive 
colors  found  in  the  overlying  "muck"  of  the  Alaska 
placers,  there  is  rarely  any  surface  indication  of  the 
existence  of  these  minerals  below  the  surface  sufficient 
to  satisfy  the  law  as  to  discovery.     While  their  exist- 

65  New  England  &  Coalinga  Oil  Co.  v.  Congdon,  152  Cal.  211,  92 
Pae.  180,  181. 


§  437  THE   DISC0VE3RY.  1024 

ence  and  their  situs  may  be  scientifically  demonstrated, 
this  will  not  satisfy  the  law;  there  must  be  an  actual 
physical  demonstration  by  the  exposure  and  production 
of  mineral  within  the  limits  of  the  location/^ 

In  the  case  of  petroleum  deposits  the  courts  in  Cali- 
fornia have  in  recent  years  been  confronted  with  some 
serious  problems  upon  the  subject  of  what  constitutes 
a  sufficient  discovery  which  will  sanction  a  location  of 
oil  lands  under  the  laws  applicable  to  placers.  It  is 
well  known  that  the  natural  habitat  of  this  class  of 
mineral  hydrocarbons  is  in  stratified  rocks  some  dis- 
tance below  the  surface,  and  except  for  the  occasional 
appearance  at  the  surface  in  the  form  of  oil  seepages, 
springs,  or  other  indications  of  the  subterranean  ex- 
istence of  petroleum,  there  is  nothing  to  guide  the 
miner  in  making  his  location.  It  requires  more  or  less 
extensive  development  in  the  nature  of  well-drilling 
and  prospecting  to  determine  the  nature,  extent,  and 
permanency  of  the  deposit. 

With  reference  to  these  surface  indications,  Judge 
Eoss,  United  States  circuit  judge  for  the  southern  dis- 
trict of  California,  expressed  the  view  that — 

Mere  indications,  however  strong,  are  not,  in  my 
opinion,  sufficient  to  answer  the  requirements  of  the 
statute,  which  requires,  as  one  of  the  essential  condi- 
tions to  the  making  of  a  valid  location  of  unappro- 
priated public  land  of  the  United  States  under  the 
mining  laws,  the  discover}^  of  mineral  within  the 
limits  of  the  claim Indications  of  the  exist- 
ence of  a  thing  is  not  the  thing  itself." 

ee  Nevada  Sierra  Oil  Co.  v.  Home  Oil  Co.,  98  Fed.  673,  675,  20 
Morr.  Min.  Rep.  283. 

67  Nevada  Sierra  Oil  Co.  v.  Home  Oil  Co.,  98  Fed.  673,  675,  20  Morr. 
Min.  Rep.  283.  Cited  and  followed  in  Miller  v.  Chrisman,  140  Cal.  440, 
98  Am.  St.  Rep.  63,  73  Pac.  1083,  1084,  74  Pac.  444;  S.  C,  in  error, 
197  U.  S.  313,  25  Sup.  Ct.  Rep.  468,  49  L.  ed.  770;  New  England  & 
Coalinga  Oil  Co.  v.   Congdon,   152   Cal.   211,   92   Pac.   180;    Whiting  v. 


1025  DISCOVEEY  ESSENTIAL  TO  PLACER   LOCATIONS.  §  437 

This  was  said,  however,  not  of  indications  existing 
within  the  boundaries  of  the  claim  in  controversy,  but 
in  adjoining  lands. 

So,  in  respect  to  placer  claims  [said  Judge  Ross], 
if  a  competent  locator  actually  finds  upon  unappro- 
priated public  land  petroleum  or  other  mineral  in  or 
upon  the  ground,  and  so  situated  as  to  constitute  a 
part  of  it,  it  is  a  sufificient  discovery  within  the  mean- 
ing of  the  statute,  to  justify  a  location  under  the  law, 
without  waiting  to  ascertain  by  exploration  whether 
the  ground  contains  the  mineral  in  sufficient  quanti- 
ties to  pay." 

This  is  in  consonance  with  the  rule  announced  by  the 
courts  in  the  case  of  lodes,  that  neither  the  size  nor 
richness  of  the  vein  is  material,  so  long  as  there  is  a 
genuine  discovery.^®  A  discovery  of  such  indications 
as  would  in  a  given  district  lead  a  miner  to  the  more 
valuable  deposit,  according  to  the  experience  in  that 
district  would  sanction  a  mining  location.®" 

This  was  said,  however,  of  a  lode  discovery  upon  the 
theory  that  there  was  some  direct  connection  in  depth 
between  commercial  ore  bodies  and  the  surface  indica- 
tion.'^ The  principle  cannot  logically  be  extended  to 
oil  seepages  occurring  sporadically.  Such  seepages 
are  not  sufficient  to  constitute  a  discovery." 

Straup,  17  Wyo.  1,  129  Am.  St.  Eep.  1093,  95  Pac.  849,  854;  Bay  v. 
Oklahoma  Southern  Oil  &  Gas  Co.,  13  Okl.  425,  73  Pac.  936,  940.  See, 
also,  Tulare  Oil  &  M.  Co.  v.  S.  P.  R.  E.,  29  L.  D.  269. 

68  Nevada  Sierra  Oil  Co.  y.  Home  Oil  Co.,  98  Fed.  673,  676,  20  Morr. 
Min.  Eep.  283. 

69  Ante,  §  336. 

60  Shoshone  M.  Co.  v.  Eutter,  87  Fed.  801,  806,  31  C.  C.  A.  223.  See 
Kern  Oil  Co.  v.  Clotfelter,  33  L.  D.  291 ;  Steele  v.  Tanana  Mines  R.  Co., 
148  Fed.  678,  679,  78  C.  C.  A.  412;  Lange  v.  Eobinson,  148  Fed.  799, 
801,  79  C.  C.  A.  1 ;  Charlton  v.  Kelly,  156  Fed.  433,  436,  84  C.  C.  A.  295, 
13  Ann.  Cas.  513. 

61  See  ante,  §  336. 

62  Southwestern  Oil  Co.  v.  Atlantic  Pacific  R.  E.  Co.,  39  L.  D.  335. 

Lindley  on  M. — 65 


§  437  THE   DISCOVERY.  1026 

Of  course,  exploitation  on  adjacent  lands  might  raise 
a  strong  presumption  that  a  given  tract  contained 
petroleum.  An  oil-producing  well  within  each  of  four 
sections  of  land  surrounding  a  fifth  would  produce  a 
conviction  that  the  oil  deposit  was  underneath  the  fifth 
section.  This  fact  might  justify  the  land  department 
in  classifying  the  section  in  the  category  of  mineral 
lands,^^  or  the  government  surveyor  in  returning  it  as 
such,**  but  it  would  not  dispense  with  the  necessity  of 
making  a  discovery.*^ 

It  is  impossible  to  lay  down  any  arbitrary  rule  to 
govern  all  cases  as  to  what  may  be  a  suflScient  discov- 
ery upon  which  to  predicate  a  location.  It  is  a  ques- 
tion of  fact,  to  be  determined  from  a  consideration  of 
all  the  circumstances  and  surroundings.®® 

In  certain  areas  in  the  oil  region  of  California  there 
are  large  surface  deposits  of  gypsum  overlying  terri- 
tory supposed  to  contain  oil,  and  numerous  attempts 
have  been  made  to  locate  the  land  containing  these 
deposits,  based  upon  the  discovery  of  gypsum,  but  they 
have,  as  a  rule,  been  unsuccessful.  The  gj^sum  pos- 
sesses no  economic  value;  that  is,  it  cannot  be  marketed 
at  a  profit,  and  that  the  land  is  not  sought  for  this  sub- 
stance but  for  petroleum  assumed  to  underlie  it  is  in 
most  instances  obvious.  The  so-called  **  gypsum  dis- 
coveries" have  found  no  favor  with  the  land  depart- 
ment. 

In  order  to,  in  a  measure,  relieve  the  prospector  from 
the  hardship  of  a  strict  enforcement  of  the  law  as  to 
discovery,  some  of  the  courts  have  expanded  the  doc- 

63  Kern  Oil  Co.  v.  Clotfelter,  33  L.  D.  291;  Hirshfeld  v.  Chrisman, 
40  L.  D.  112. 

64  state  of  Washington  v.  McBride,  25  L.  D.  169,  181. 

65  Reins  V.  Murray,  22  L.  D,  409. 

66  Cascaden  y.  Bortolis,  162  Fed.  267,  271,  89  C.  C.  A.  247.  Ante, 
§336. 


1027  DISCOVERY  ESSENTIAL  TO  PLACER  LOCATIONS.  §  437 

trine  of  pedis  posse ssio  (which  ordinarily  is  understood 
to  mean-  the  limited  space  on  which  the  locator  is 
engaged  in  actual  work),  so  as  to  protect  the  entire 
surface  of  a  location  from  entry  by  others  seeking  to 
locate,  if  the  prior  locator,  ha\^ng  located  without  dis- 
covery, is  actually  working  at  some  point  within  the 
boundaries  of  his  location,  a  subject  fully  discussed  in 
a  preceding  section.'^ 

As  to  "muck"  discoveries  in  Alaska,  the  courts  have 
been  somewhat  lenient  where  the  controversy  is  be- 
tween adverse  mining  claimants.  A  typical  case 
involving  the  question  of  sufificient  discovery  is  Cas- 
caden  v.  Bortolis,  decided  by  the  circuit  court  of 
appeals,  ninth  circuit,  from  which  we  quote : — 

How  is  the  prospector  for  placer  gold  to  be  guided? 
He  discovers  gold,  a  few  cents  only  to  the  pan.  He 
knows  he  is  in  a  gold-bearing  placer  region,  but  is 
unacquainted  with  any  distinct  characteristics  of  the 
mineral-bearing  area  in  the  vicinity  where  he  has 
made  his  discovery.  Naturally,  he  does  not  wish  to 
make  a  location  unless  the  mineral  discovered  is  of 
sufficient  value  to  justify  the  belief  that  the  ground 
will  be  valuable  for  placer  mining.  He  is  thus  con- 
fronted with  the  need  of  deciding  whether  or  not  he 
is  justified  in  spending  his  time  and  money  in  going 
ahead  with  his  work,  expecting  to  find  gold  in  pay- 
ing quantities.  To  aid  him  in  making  up  his  mind, 
he  will  consult  miners  who  are  experienced  in  that 
particular  district.  He  will  find  out  the  special 
character  of  the  country  about,  and  will  at  once 
gather  all  the  knowledge  he  can  readily  obtain  of 
how  the  adjacent  claims  are  paying,  where  the  pay- 
streak  is  likely  to  be,  and  what  amount  of  gold  was 
discovered  by  the  miners  who  located  such  other 
claims  and  developed  them  afterward,  and  what 
method  of  development  was  adopted;  and  when  he 
has  informed  himself  upon  these  matters,  he  will  use 

•7  Ante,  §  218. 


§  437  THE  DISCOVERY.  1028 

the  information,  together  with  the  fact  that  he  has 
found   mineral,   as   a  basis  for  a  justification  for 
action,  and,  if  the  justification  for  his  action  is  well 
founded,  the  facts  and  circumstances  upon  which  it 
was  based  are  proper  to  be  shown." 
A  more  rigid  rule,  however,  is  applied  where  there  is 
a  prior  agricultural    claimant    in    possession  and  an 
attempt  is  made  to  locate  the  land  or  parts  of  it  under 
the  placer  mining  laws.®"    As  to  the  ancient  river  chan- 
nels or  deep  auriferous  placers,  the  only  method  of  dis- 
covery from  the  surface  is  by  shafts  or  boring,  except 
in  the  rare  cases  where  erosion  in  the  sides  of  gorges 
or  canyons  has  exposed  the  gravels  lying  on  their 
ancient  beds.    We  have  described  these  deposits  in  a 
previous  section.^" 

The  state  of  New  Mexico  has  a  unique  statute  which 
allows  a  locator  ninety  days  from  the  date  of  location 
in  which  to  make  a  discovery  of  mineral  other  than  oil 
or  gas,  and  until  the  end  of  the  calendar  year  to  make 
discovery  of  oil  or  gas.  The  wisdom  of  some  such  pro- 
vision as  to  oil  and  gas  may  readily  be  conceded.  But 
it  is  a  subject  entirely  in  the  control  of  congress. 
Under  the  federal  law  a  location  without  discovery 
possesses  no  validity.  It  is  doubtful,  at  least,  if  states 
may  extend  the  time  for  discovery.  However,  the 
effect  of  such  a  statute  may  be  to  recognize  a  posses- 
sory right  where  a  location  is  made  without  discovery, 
which  may  be  enforced  in  the  local  courts— a  right, 
however,  which,  as  we  have  heretofore  noted,  is  now 
upheld  in  certain  jurisdictions,  under  certain  condi- 
tions, as  to  petroleum  locations." 

68  Cascaden  v.  Bortolis,  162  Fed.  267,  271,  89  C.  C.  A.  247.  See,  also, 
Lange  v.  Robinson,  148  Fed.  799,  803,  79  C.  C.  A.  1 ;  Charlton  v.  Kelly, 
156  Fed.  433,  437,  13  Ann.  Cas.  513,  84  C.  C.  A.  295. 

69  Steele  v.  Tanana  Mines  R.  Co.,  148  Fed.  678,  680,  78  C.  C.  A.  412. 

70  Ante,  §  427. 
Ti  Ante,  §  218. 


1029  UNIT  OF  PLACER  LOCATIONS.  §  438 

§  438.  Unit  of  placer  locations— Discovery  in  each 
twenty-acre  tract. — We  have  heretofore  obser\'ed  that 
the  unit  of  lode  locations  is  a  surface  area  aggregating 
a  fraction  over  twenty  acres,  and  that  it  is  immaterial 
how  many  or  how  few  locators  participate  in  that  class 
of  locations." 

We  shall  see  in  a  succeeding  article  that  the  rule  in 
regard  to  placers  is  somewhat  different.  In  placers, 
the  unit  of  the  location  is  twenty  acres  to  each  indi- 
vidual, with  a  maximum  (except  in  Alaska)  of  one  hun- 
dred and  sixty  acres  to  an  association  of  persons.  In 
other  words,  unless  limited  by  local  rules,  and  assum- 
ing that  local  regulations  may  prescribe  such  a  limita- 
tion," a  single  individual  may  locate  a  twenty-acre 
tract,  but  no  more.  Where  more  than  one  person  (not 
exceeding  eight)  participate,  an  area  equivalent  to 
twenty  acres  to  each  is  permitted;  but  they  locate  the 
whole  area  jointly,  becoming  tenants  in  common 
thereof,  and  are  not,  according  to  the  practice,  required 
to  each  locate  a  particular  specified  twenty-acre  tract. 

Some  of  the  earlier  decisions  of  the  land  department 
held  that  a  discovery  on  each  twenty  acres  of  an  asso- 
ciation placer  location  was  essential  in  order  to  hold 
the  entire  area.'*  But  the  rule  is  now  well  settled  both 
by  the  courts  and  the  land  department  that  one  discov- 
ery within  the  limits  of  an  association  location  is  suffi- 
cient.'*   The  land  department,  however,  while  recog- 

72  Ante,  §  361. 

73  Copp's  Min.  Dec.  164. 

74  Ferrell  &  Hoge,  18  L.  D.  81;  S.  P.  R.  R.  Co.  v.  Griffin,  20  L.  D. 
485;  Rhodes  v.  Treas,  21  L.  D.  502;  Louise  M.  Co.,  22  L.  D.  663;  Union 
Oil  Co.,  23  L.  D.  222.     See  Ferrell  v.  Hoge,  in  review,  19  L.  D.  568. 

75  Union  Oil  Co.,  in  review,  25  L.  D.  351,  358;  Ferrell  v.  Hoge,  27 
L.  D.  129;  Reins  v.  Raunheim,  28  L.  D.  526;  Ferrell  v.  Hoge,  29  L.  D. 
12;  McDonald  v.  Montana  Wood  Co.,  14  Mont.  88,  43  Am.  St.  Rep.  616, 
35  Pac.  668,  669;  Whiting  v.  Straup,  17  Wyo.  1,  129  Am.  St.  Rep.  1093, 


§  438  THE  DISCOVERT.  1030 

nizing  this  rule,  takes  the  position  that  a  single  dis- 
covery within  a  placer  location  does  not  conclusively 
establish  the  mineral  character  of  all  the  land  within 
it,  and  that  this  question  is  open  to  investigation  by  the 
department  at  any  time  until  patent  has  issued/' 
There  is  no  legal  inference  that  because  a  given  twenty- 
acre  tract  within  an  area  of  one  hundred  and  sixty 
acres  is  mineral  in  character,  the  adjoining  tracts  or 
others  are  of  the  same  character." 

In  determining  the  character  of  the  land  embraced  in 
a  placer  location,  ten-acre  tracts  normally  in  square 
form  are  the  units  of  investigation  and  determination, 
and  if  any  such  are  found  to  be  nonmineral,  they 
should  be  eliminated  from  the  claim.^^  Nonmineral 
surface  land  is  not  permitted  for  the  convenient  work-  ^ 
ing  of  the  claim." 

The  determination  of  this  question  of  character  of 
the  land  is  undoubtedly  aided  by  reports  of  the  geo- 
logical survey  in  cases  of  petroleum,  natural  gas  and 
deep  placers,  where  the  existence  and  extent  of  these 
subterranean  deposits  which  have  been  developed  in 
contiguous  or  adjacent  territory  may  be,  problemati- 
cally at  least,  determined  by  geological  investiga- 
tions.*° 

While  the  land  department  must  be  satisfied  of  the 
mineral  character  of  the  entire  tract,  it  must  be  noted 

95  Pac.  849,  854;  Nome  &  Sinook  Co.  v.  Snyder,  187  Fed.  385,  388,  109 
C.  C.  A.  217,  1  Water  &  Min.  Cas.  202;  Hall  v.  McKinnon,  193  Fed. 
572,  574;  Cook  v.  Klonos,  164  Fed.  529,  537,  90  C.  C.  A.  403. 

76  Ferrell  v.  Hoge,  29  L.  D.  129;  American  Smelting  &  Refining  Co., 
39  L.  D.  299.  See,  also,  State  of  Washington  v.  McBride,  25  L.  D.  167, 
182. 

77  Dughi  V.  Harkins,  2  L.  D.  721,  quoted  in  Davis  v.  Weibbold,  139 
U.  S.  507,  522,  11  Sup.  Ct.  Rep.  628,  35  L.  ed.  238,  and  in  United  States 
V.  Central  Pac.  R.  R.  Co.,  93  Fed.  871,  874. 

78  American  Smelting  &  Refining  Co.,  39  L.  D.  299. 

79  Ferrell  v.  Hoge,  29  L.  D.  12. 

80  A7ite,  §  103. 


1031  BOUNDARY  LINE  DISCOVERIES.  §  438a 

in  this  connection  that  it  is  not  necessary  that  the  min- 
eral nature  of  the  deposits  sliould  be  the  same  in  all 
parts  of  the  claim.  They  may  be  different  in  different 
parts  of  the  same  area,  provided  they  are  all  placer  in 
character, — that  is,  not  "in  place."  ®^ 

A  discovery  when  made  validates  the  location  as  to 
the  area  claimed,  if  within  the  legal  maximum  and  if 
made  by  the  requisite  number  of  persons,  but  it  will 
not  sanction  an  amendment  to  the  location  which 
would  increase  the  area,  where  the  original  location 
embraces  less  than  the  maximum.  The  newly  added 
area  is  not  entitled  to  the  benefit  of  the  original  dis- 
covery.*^ A  discovery  should  be  made  in  the  added 
area. 

§  438a.  Boundary  line  discoveries. — The  great  ex- 
pense involved  in  making  a  satisfactory  discovery  in 
the  oil  regions  has  suggested  the  obviously  economic 
method  of  drilling  a  well  on  the  boundary  line  of  the 
claims  or  at  the  corner  common  to  three  or  four,  with 
a  view  of  making  a  discovery  simultaneously  on  all  of 
the  contiguous  claims  through  the  one  well. 

In  a  previous  section*^  we  have  discussed  lode  dis- 
coveries through  the  medium  of  a  shaft  bisecting  an 
end-line  boundary  common  to  two  claims,  and  reached 
the  conclusion  that  where  such  shaft  disclosed  the  ex- 
istence of  a  part  of  the  apex  of  a  vein  in  each  location, 
both  locations  would  be  valid,  and  this  result  would 
follow  whether  both  locations  were  made  by  the  same 
or  by  different  parties.  The  principle  upon  which  this 
conclusion  rests  is  the  necessity  that  some  part  of  the 
apex  of  the  vein  should  be  demonstrated  to  exist  in 

«i  Ferrell  v.  Hoge,  29  L.  D.  12. 

82  Weed  V.  Snook,  144  Cal.  439,  77  Pac.  1023,  1025;  Biglow  v.  Con- 
radt,  159  Fed.  8&8,  871,  87  C.  C.  A.  48. 
88  §  337, 


§  438a  the  discovert.  1032 

eacli  location,  and  when  this  condition  is  shown  to  ex- 
ist, the  letter  and  spirit  of  the  law  is  satisfied.  We 
have  heretofore  alluded  to  a  possible  confusion  in  the 
decisions  between  the  discovery  and  the  discovery 
shaft. 

With  reference  to  petroleum  locations,  we  are  not 
aware  of  any  state  legislation  which  requires  *' discov- 
ery shafts"  as  a  prerequisite  to  the  completion  of  the 
location.  Such  a  requirement  would  be  obviously  ab- 
surd. In  reaching  a  solution  of  the  question  as  to 
validity  of  a  discovery  made  through  drilling  a  bound- 
ary line  well  as  the  basis  of  two  or  more  petroleum 
locations,  there  is  no  opportunity  for  confusing  the 
discovery  with  the  discovery  shaft. 

As  to  the  validity  of  such  discoveries,  so  far  as  the 
courts  and  the  published  decisions  of  the  secretary  of 
the  interior  are  concerned,  the  question  is  res  Integra. 
It  was  mooted  but  not  decided  in  a  case  considered  by 
the  supreme  court  of  Wyoming.^*  This  was  a  case  of  a 
boundary  line  well ;  the  court  held  as  follows : — 

All  that  the  record  discloses  as  to  the  precise 
point  of  discovery  is  the  surface  situation  of  the 
well.  In  the  absence  of  anything  to  the  contrary, 
we  think  the  fact  that  one-half  the  diameter  of  the 
well  at  its  surface  is  in  the  claim  is  sufficient  show- 
ing of  discovery  within  the  claim.  Although  it  was 
argued  that  the  well  may  not  have  followed  a 
straight  line  in  its  descent  and  that  its  course  may 
have  deviated  from  such  line  and  away  from  these 
premises,  there  is  not  the  slightest  evidence  to  indi- 
cate such  a  condition,  and  we  are  not,  therefore,  at 
liberty  to  infer  that  it  exists. 

If  it  be  conceded  that  the  object  of  compelling  a  dis- 
covery as  the  basis  of  a  location  is  to  demonstrate  the 

84  Phillips  V.  Brill,  17  Wyo.  26,  95  Pac.  856,  859.  See,  also,  Dean  v. 
Omaha- Wyoming  Oil  Co.  (Wyo.),  128  Pac.  881,  883. 


1033  BOUNDARY  LINE  DISCOVERIES.  §  438a 

actual  existence  of  mineral  within  the  boundaries  of 
the  claim,  as  well  as  to  reward  the  discoverer,  and  as 
to  this  there  can  be  no  dissent,  it  cannot  be  denied  that 
a  boundary  line  well  which  reaches  and  determines  the 
existence  of  the  deposit  establishes  the  incontrovert- 
ible fact  that  petroleum  exists  and  has  been  actually- 
discovered  in  ever}"  location  penetrated  by  the  well. 
If  any  portion  of  an  apex  discovered  in  a  lode  location 
is  sufficient  to  support  such  location,  it  would  seem 
that  a  discovery  of  petroleum  made  through  the  instru- 
mentality of  a  boundary  line  well  should  inure  to  the 
benefit  of  eveiy  location  into  which  it  penetrates. 
This,  we  think,  would  be  true  where  the  ownership  of 
all  the  claims  was  in  the  same  person;  it  would  also  be 
true  if  the  well  were  drilled  by  co-operation  and  agree- 
ment between  two  or  more  contiguous  owners. 

As  we  shall  later  point  out,"  the  owners  of  an  asso- 
ciation placer  claim  may  convey  a  part  of  its  area  prior 
to  discovery,  with  an  agreement  that  when  discoveiy 
is  made  in  the  conveyed  portion,  it  will  inure  to  the 
benefit  of  the  unconveyed  part.  Such  being  the  case, 
what  objection,  from  a  legal  standpoint,  can  there  be 
to  an  agreement  between  coterminous  owners  that  a 
well  shall  be  drilled  on  joint  account  on  a  boundary  or 
at  a  corner  common  to  the  claims  and  when  a  discoveiy 
is  made  that  it  should  inure  to  the  benefit  of  all  the 
claims? 

As  pointed  out  by  the  supreme  court  of  the  United 
States,  claim  owners  are  peinaiitted  to  combine  and 
work  their  properties  together  where  the  burden  of 
single-handed  development  might  be  prohibitive,^*  and 

88  §438b. 

86  Jackson  v.  Eoby,  109  U.  S.  440,  445,  3  Sup.  Ct.  Eep.  301,  27  L.  ed. 
990, 


§  438b  the  discoveby.  1034 

are  permitted  to  make  joint  entry  of  contiguous  tracts 
regardless  of  size/^ 

We  are  of  the  opinion  that  a  rational  interpretation 
of  the  law  sanctions  the  utilization  of  boundary  line 
wells  as  a  means  of  discovery  in  the  oil  region,  and 
where  such  a  discoverj^  is  made  through  this  instru- 
mentality, it  should  inure  to  the  benefit  of  all  locations 
penetrated  by  the  well.  The  reasoning  of  the  supreme 
court  of  California  in  the  case  of  Merced  Oil  Mining 
Co.  V.  Patterson,'^  by  implication  at  least,  supports  this 
doctrine. 

Necessarily  the  boundarj^  to  be  bisected  with  a  well 
would  have  to  be  located  with  mathematical  pre- 
cision,''^ but  this  does  not  affect  the  principle. 

§  438b.  Conveyance  of  parts  of  placer  locations 
prior  to  discovery. — Chief  Justice  Beatty,  of  the  su- 
preme court  of  California,  in  a  vigorous  dissent  from 
the  majority  opinion  in  the  case  of  Miller  v.  Chrisman,'^ 
expressed  the  view  that  as  there  could  be  no  location 
of  a  mining  claim  before  discovery,  there  can  be  no 
transfer  or  assignment  of  a  location  before  the  location 
is  complete.  In  other  words,  there  can  be  no  assign- 
ment of  the  right  to  locate.  If,  in  expectation  of  a  dis- 
covery, an  association  of  persons  marks  the  boundary 
of  a  placer  claim  containing  twenty  acres  for  each 
associate,  they  would  be  protected  in  their  possession 
while  they  proceed  with  reasonable  diligence  to  pros- 

87  St.  Louis  Smelting  Co.  v.  Kemp,  104  U.  S.  636,  653,  26  L.  ed.  875, 
11  Morr.  Min.  Eep.  673. 

88  153  Cal.  624,  96  Pae.  90,  92. 

88a  For  an  instance  where  a  well  intended  to  be  drilled  on  the 
boundary  but  missed  it,  see  Dean  v.  Omaha-Wyoming  Oil  Co.  (Wyo.), 
128  Pac.  881,  883. 

89  140  Cal.  440,  452,  98  Am.  St.  Eep.  63;  majority  opinion,  73  Pac. 
1083;  dissent,  74  Pac.  444. 


1035  CONVEYANCE  PRIOR  TO  disco\t:ry.  §  438b 

pect  the  claim  and  that  by  discovery  they  will  perfect 
it;  but  if  some  of  the  associates  withdraw  before  dis- 
cover^^  or  attempt  to  assign  their  claims  to  those  who 
continue  the  work  of  the  development,  those  who  re- 
main will  have  no  right  to  claim  a  greater  area  in  the 
aggregate  than  they  could  have  taken  by  an  original 
location.  In  other  words,  an  association  of  placer  loca- 
tors, having  located  without  discovery  one  hundred  and 
sixty  acres,  convey  the  entire  title  to  one  of  them  or  to 
a  stranger — subsequently  the  individual  holding  tlie 
entire  title  makes  a  discovery.  This  discoveiy  entitles 
him  to  hold  only  twenty  acres,  as  that  is  all  he  could 
acquire  by  an  individual  location.  The  majority  of  the 
court,  however,  held  that  such  a  conveyance  by  the 
associates  to  one  of  them  was  valid.^° 

The  case  was  taken  to  the  supreme  court  of  the 
United  States  on  writ  of  error  and  the  judgment  was 
affirmed,  without,  however,  discussing  this  question.^- 

The  doctrine  of  Miller  v.  Chrisman  was  followed  in 
principle  in  Weed  v.  Snook.^'  In  Merced  Oil  Co.  v. 
Patterson,""  Chief  Justice  Beatty  participating  in  the 
opinion,  the  rule  was  extended  so  as  to  apply  to  convey- 
ances by  the  associates  to  a  stranger,  and  it  was  there 
held  that  a  discover}^  made  by  the  grantee  validated 
the  entire  location,  provided  that  there  was  an  agree- 
ment between  the  vendor  and  vendee  that  a  discovery 
when  made  should  inure  to  the  benefit  of  the  entire 
location  as  originally  made.     No  such  agreement  was 

90  140  Cal.  440,  98  Am.  St.  Rep.  63,  74  Pac.  444. 

91  Chrisman  v.  Miller,  197  U.  S.  313,  25  Sup.  Ct.  Rep.  46S,  49  L.  ed. 
770.  See  comment  on  this  case  by  the  supreme  court  of  California,  in 
Merced  Oil  Co.  v.  Patterson,  162  Cal.  358,  122  Pac.  950,  952,  and  by  the 
secretary  of  the  interior  in  Bakersfield  Fuel  &  Oil  Co.,  39  L.  D.  460,  462. 

92  144  Cal.  439,  77  Pac.  1023,  1025. 
83  153  Cal.  624,  96  Pac.  90. 


§  438c  THE   DISCOVERY.  1036 

shown  in  the  record  then  before  the  court,  but  the  de- 
fect was  supplied  on  a  retrial.®* 

The  land  department  originally  stood  sponsor  for  the 
rule  contended  for  by  Chief  Justice  Beatty  in  the 
Miller-Chrisman  case,®**  specifically  declining  to  follow 
the  majority  opinion  of  the  court  in  that  case,®®  thus 
creating  a  sharp  controversy  between  that  department 
and  the  courts  which  required  an  act  of  congress  to 
settle. 

On  March  2,  1911,  congress  acted  by  passing  a  law 
which  provided — 

That  in  no  case  shall  patent  be  denied  to  or  for  any 
lands  heretofore  located  or  claimed  under  the  mining 
laws  of  the  United  States  containing  petroleum,  min- 
eral oil  or  gas,  solely  because  of  any  transfer  or  ^ 
assignment  thereof,  or  of  any  interest  or  interests 
therein  by  the  original  locator  or  locators  or  any  of 
them  to  any  qualified  persons  or  person  or  corpora- 
tion, prior  to  discovery  of  oil  or  gas  therein,  but  if 
such  claim  is  in  all  other  respects  valid  and  regular, 
patent  therefor  not  exceeding  one  hundred  and  sixty 
acres  in  any  one  claim  shall  issue  to  the  holder  or 
holders  thereof  as  in  other  cases;  provided,  however, 
that  such  lands  were  not  at  the  time  of  inception  of 
development  on  or  under  such  claim  withdrawn  from 
mineral  entry." 

§  438c.  Unit  of  placer  claims  in  Alaska. — Under  an 
act  of  congress  passed  August  1,  1912,  no  association 
placer  claim  in  Alaska  located  after  the  passage  of  the 
act  can  exceed  forty  acres.  The  unit  of  a  placer  loca- 
tion remains  twenty  acres  to  the  individual.     The  same 

94  Merced  Oil  Co.  v.  Patterson,  162  Cal.  358,  122  Pac.  950,  952. 
S5  In  re  Yard,  38  L.  D.  59. 

96  Bakersfield  Fuel  &  Oil  Co.,  39  L.  D.  460,  462. 

97  36  Stats,  at  Large,  p.  1015;  Comp.  Stats.  (Supp.  1911),  p.  612; 
1  Fed.  Stats.  Ann.  (Supp.),  p.  270;  In  re  Graham  et  al.,  40  L.  D.  128. 


1037  STATE  STATUTES.  §  442 

act  contains  provisions  with  regard  to  annual  work, 
form  of  location  and  limitation  on  number  of  locations 
an  individual  may  make,  in  his  own  right  and  by 
power  of  attorney,  which  will  be  hereafter  discussed. 
The  act  is  quoted  in  full  in  a  previous  section."' 


Article  TV.    State  Legislation  as  to  Posting 
Notices  and  Preliminary  Development  Work. 


442.  State     statutes     requiring 

posting    of    notices    on 
placers. 

443.  Preliminary      development 


work  required  by  state 
laws  upon  placer  loca- 
tions. 


§  442.  State  statutes  requiring  posting  of  notices  on 
placers. — The  general  observations  upon  the  subject  of 
posting  notices  following  lode  discoveries,  found  in  a 
preceding  section,"  apply  with  equal  force  to  all  classes 
of  locations  upon  the  public  mineral  lands.  With  the 
exception  of  the  common  custom  generally  observed,  as 
there  indicated,  the  posting  of  a  notice  is  the  subject  of 
state  or  local  regulation,  in  the  absence  of  which  none 
is  required. 

Some  of  the  states  have  enacted  laws  upon  the  sub- 
ject with  regard  to  placers,  a  brief  epitome  of  which 
will  not  be  out  of  place: — 

Arizona. — Same  as  lode  claims,  except  that  the  no- 
tice must  contain  the  number  of  acres  claimed  instead 
of  the  requirements  of  subdivisions  four  and  five  of  the 
section  concerning  contents  of  notice  on  lode  claims. ^°° 

California. — The  same  as  in  lode  claims,  except  that 
the  number  of  feet  or  acreage  claimed  must  be  given, 
and  where  the  United  States  survey  has  been  extended 

98  §  332. 

»»  A7ite,  §  350. 

100  Rev.  Stats.  1901,  §§  3232,  3242.     Ante,  §  353. 


§  412  STATE  LEGISLATION  AS   TO  POSTING  NOTICES.  1038 

over  the  land  embraced  in  the  location,  the  claim  may 
be  taken  by  legal  subdivisions  with  no  other  reference 
than  those  of  said  survey.^ 

Colorado. — Before  recording  (thirty  days  from  dis- 
covery) the  discoverer  must  post  upon  the  claim  a 
notice  containing:  (1)  The  name  of  the  claim;  (2)  The 
name  of  the  locator;  (3)  Date  of  discovery;  and  (4) 
Number  of  feet  or  acres  claimed,* 

Idaho. — Requirements  are  practically  the  same  as  in 
lode  claims.' 

Montana. — The  same  as  in  lode  claims,  except  that 
the  number  of  feet  or  acres  claimed,  instead  of  the 
length  of  the  lode,  must  be  designated  in  the  notice.* 

Nevada. — Same  as  Colorado.' 

New  Mexico. — The  locator  is  required,  at  the  time  of 
making  the  location,  to  post  at  a  designated  comer  of 
the  claim  a  notice  stating  the  name  of  the  claim,  the 
purpose  and  kind  of  material  for  which  such  claim  is 
located,  the  names  of  the  locators,  a  description  of  the 
claim,  by  legal  subdivisions  if  on  surveyed  lands,  or  by 
metes  and  bounds  if  on  unsurveyed  land.' 

South  Dakota,  Oregon,  and  North  Dakota. — If  any 
notice  is  required  to  be  posted,  it  is  the  same  as  in  the 
case  of  lode  claims.^  Placers  are  not  specially  named 
in  their  laws  upon  the  subject  of  posting  notices,  and 
it  is  doubtful  if  they  were  intended  to  apply  to  placer 
locations. 

1  Civ.  Code,  §  1426c. 

2  Mills'  Ann.  Stats.,  §  3136;  Eev.  Stats.  1908,  §  4205. 

s  Laws  1895,  p.  25,  §§  2,  12,  as  amended — Laws  1897,  p.  12;  Civ. 
Code    1901,  §2563;    Rev.    Code    1907,  §  3222.     Ante,  %  354. 

4  Rev.  Code  1895,  §3610;  amended  l&Ol,  p.  140;  1907,  p.  18;  Eev. 
Code  1907,  §  2284.     Ante,  §  352. 

6  Comp.  Laws  1900,  §220;   Rev.  Laws  1912,  §  2434. 

•  Laws  1909,  p.  190. 

1  Ante,  §  353. 


1039  PRELIMINARY    DEVELOPMENT    WORK    REQUIRED.         §  443 

Utah. — Same  as  lode  claims,  except  that  the  notice 
should  state  the  number  of  acres  or  superficial  feet 
claimed,  instead  of  the  length  and  course  of  the  vein, 
and  the  width  on  either  side  thereof.' 

Washington. — The  notice  must  contain  (a)  the  name 
of  the  claim;  (b)  name  of  location;  (c)  date  of  discov- 
ery^ and  posting  of  notice,  which  shall  be  considered  as 
the  date  of  the  location;  (d)  a  description  of  the  claim 
by  reference  to  legal  subdivisions  of  sections,  if  the 
location  is  made  in  conformity  with  the  public  surveys; 
otherwise,  a  description  with  reference  to  some  natural 
object  or  permanent  monument  as  will  identify  the 
claim.' 

Wyoming. — ^Provisions  are  the  same  as  in  Colorado.^" 

§  443.  Preliminary  development  work  required  by 
state  laws  upon  placer  locations. — When  speaking  of 
the  requirement  of  preliminary  development  work  with 
respect  to  lode  locations,  we  expressed  the  view  that 
the  object  was  twofold: — 

(1)  To  determine  the  lode  character  of  the  deposit; 

(2)  To  compel  the  discoverer  to  manifest  his  inten- 
tion to  claim  the  ground  in  good  faith  under  the  mining 
laws." 

It  is  quite  obvious  that  both  of  these  reasons  cannot 
be  offered  in  support  of  similar  requirements  in  cases 
of  placers,  although  the  latter  applies  with  equal  force 
to  them.  Only  five  of  the  states,  however,  have  at- 
tempted any  legislation  on  this  subject  with  respect  to 
placers. 

8  Laws  1899,  p.  69,  §2;   Comp.  Laws  1907,  §  1496.     ^nle,  §  380. 

9  Laws  1899,  p.  71,  as  amended— Laws  1901,  p.  292;  Rem.  &  Bal. 
Codes  1909,  §  7367. 

10  Laws  1888,  pp.  89,  90,  §  22 ;  Rev.  Stats.  1899,  §  2553,  as  amended— 
Laws  1901,  p.  104;   Comp.  Stats.  1910,  §  3474. 

11  Ante,  §  344. 


§  443  STATE  LEGISLATION  AS   TO   POSTING   NOTICES.  1040 

In  Idaho  ^"^  it  is  provided  that  within  fifteen  days 
after  making  the  location,  the  locator  must  make 
an  excavation  on  the  claim  of  not  less  than  one  hundred 
cubic  feet,  for  the  purpose  of  prospecting  the  same. 

In  Montana"  the  equivalent  of  the  work  done  upon 
lode  claims  must  be  done  upon  placers. 

Nevada^*  requires  that  within  ninety  days  after  post- 
ing the  notice  of  location  the  locator  shall  perform  not 
less  than  twenty  dollars'  worth  of  labor  upon  the  claim 
for  the  development  thereof. 

In  New  Mexico,  without  prescribing  any  definite  dis- 
covery work,  the  locator  is  required  to  make  a  bona 
fide  discovery  of  the  mineral  or  material  claimed  in  the 
location  notice  within  ninety  days  after  location  or  the 
location  will  be  void.  Provided  that  in  the  case  of  oil 
or  gas  locations,  the  locator  may  have  until  the  end  of 
the  succeeding  calendar  year  in  which  to  make  a  dis- 
covery." 

We  have  heretofore"  discussed  the  force  and  effect 
of  this  statute. 

In  Washington"  it  is  provided  that  within  sixty 
dciys  from  the  date  of  discovery,  the  discoverer  shall 
perform  labor  upon  the  location  or  claim  in  developing 
the  same  to  an  amount  equivalent  in  the  aggregate  to 
at  least  ten  dollars '  worth  of  such  labor  for  each  twenty 
acres  or  fractional  part  thereof  contained  in  such  loca- 
tion or  claim.     To  which  is  added  this  language: — 

12  Laws  1895,  p.  25,  §  xii,  as  amended — Laws  1897,  p.  12;  Civ.  Code 
1901,  §2563;   Rev.  Code  1907,  §  3222. 

13  Rev.  Code  1895,  §3611;  Rev.  Code  1907,  §  2283.  See  Purdum  t. 
Laddin,  23  Mont.  387,  59  Pac.  153. 

1*  Comp.  Laws  1900,  §221;  Rev.  Laws  1912,  §  2435. 

18  Laws  1909,  p.  190. 

i«  Ante,  §  437. 

17  Laws  1899,  p.  71,  §  10,  aa  amended — Laws   1901,  p.  292;  Rem.  & 

Bal.  Codes  (1909),  §  7367. 


1041 


FORM  AND  EXTENT. 


§447 


Provided,  however,  that  nothing  in  this  subdivi- 
sion shall  be  held  to  apply  to  lands  located  under  the 
laws  of  the  United  States  as  placer  claims  for  the 
purpose  of  the  development  of  petroleum  and  natural 
gas  and  other  natural  oil  products. 

The  remaining  states  and  territories  have  either 
passed  no  laws  upon  the  subject  or  have  repealed  such 
as  heretofore  existed. 

It  must  be  remembered  that  these  requirements  are 
not  necessarily  connected  with  the  annual  labor  pre- 
scribed by  the  acts  of  congress.  While  this  prelimin- 
ary development  work  might  possibly  under  certain 
circumstances  be  considered  in  estimating  the  value  of 
the  annual  labor  for  the  first  year  next  succeeding  the 
date  of  location,  its  requirement  is  one  of  the  acts  of 
location,  and  we  think  such  legislation  is  clearly  within 
the  power  of  the  states." 


Article  V.    The  Surface  Covered  by  the  Loca- 
tion— Its  Form  and  Extent. 


§  447.  Form  and  extent  of  placer 
locations  prior  to  Re- 
vised Statutes. 

§  448.  Form  and  extent  under 
Revised  Statutes. 

§  44Sa.  Limitation  as  to  size  of 
claims  under  district 
rules. 


§  448b.  Surface  conflicts  with 
prior  locations. 

§  448c.  Excessive  placer  locations. 

§  449.  Placer  locations  by  corpo- 
rations. 

§  450.  Locations  by  several  per- 
sons in  the  interest  of 
one — Number  of  loca- 
tions  by   an   individual. 


§  447.  Form  and  extent  of  placer  locations  prior  to 
Revised  Statutes. — Previous  to  the  act  of  July  9.  1870, 
commonly  known  as  the  ''placer  law,"  congress  im- 
posed no  limitation  to  the  area  which  might  be  included 
in  the  location  of  a  placer  claim.     This,  as  well  as  every 

18  Ante,  §  344. 

Lindley  on  M. — 66 


§  447  THE  SURFACE  COVERED  BY  THE  LOCATION.  1042 

other  thing  relating  to  the  acquisition  and  continued 
possession  of  mining  claims,  was  determined  by  rules 
and  regulations  established  by  miners  themselves.^® 
The  size  and  shape  varied  according  to  the  nature  of 
the  deposit,  for  in  those  days  this  class  of  claims  em- 
braced hydraulic  ''diggings,"  gulch  or  ravine  claims, 
creek  claims,  and  claims  on  bars  and  flats.^°  Loca- 
tions of  these  claims  were  made  without  regard  to  the 
lines  of  public  surveys,  as  there  were  none. 

The  placer  law  of  1870''  provided  for  the  patenting 
of  placer  claims  under  like  circumstances  and  condi- 
tions as  were  provided  by  the  lode  law  of  1866  for  vein 
or  lode  claims.  It  was  required,  however,  that  where 
locations  were  made  upon  surveyed  lands,  the  entry  in 
its  exterior  limits  was  required  to  conform  to  the  legal 
subdivisions  of  the  public  lands.  For  this  purpose, 
it  was  provided  that  forty-acre  tracts  might  be  subdi- 
vided into  areas  of  ten  acres,  but  no  location  thereafter 
to  be  made  was  permitted  to  exceed  one  hundred  and 
sixty  acres  for  any  one  person  or  association  of  persons. 

Locations  made  prior  to  this  act  might,  if  located  in 
conformity  with  local  rules,  be  patented,  whatever 
their  form  or  area,"  and  any  number  of  contiguous 
claims,  of  any  size,  might  be  purchased,  consolidated, 
and  applied  for  as  one  entry.^^ 

Under  this  act,  any  one  person  might,  unless  inhib- 
ited by  local  rules,  locate  one  hundred  and  sixty  acres. 
An  association  of  persons  was  limited  to  a  like  area. 

19  St.  Louis  Smelting  Co,  v.  Kemp,  104  U.  S.  636,  649,  26  L.  ed.  875, 
11  Morr.  Min.  Rep.  673. 

20  Yale  on  Mining  Claims  and  Water  Eights,  pp.  76,  77. 

21  16  Stats,  at  Large,  p.  217;  Comp.  Stats.  1901,  p.  1432;  5  Fed. 
Stats.  Ann.  42.     See  Appendix. 

22  Copp's  Min.  Dec.  40. 

23  St.  Louis  Smelting  Co.  v,  Kemp,  104  U.  S.  636,  651,  26  L.  ed.  875, 
11  Morr.  Min.  Rep.  673 


1043  FORM  AND  EXTENT.  §  448 

The  general  mining  act  of  May  10,  1872,"  modified 
the  original  placer  law  by  fixing  the  limit  of  twenty 
acres  for  each  individual  claimant.  The  limit  which 
might  be  taken  by  an  association  of  persons  remained 
the  same,  as  in  this  respect  the  act  of  1870  was  unre- 
pealed." 

As  to  the  form  of  the  location,  the  later  act  provided 
that  it  should  conform  as  near  as  practicable  with  the 
United  States  system  of  public  land  surveys  and  the 
rectangular  subdivisions  of  such  surveys;  where  it 
could  not  be  confomied  to  legal  subdivisions,  it  might 
be  made  the  same  as  on  unsurveyed  lands.  This  was 
the  state  of  the  law  when  the  federal  statutes  were  re- 
vised. 

§  448.    Form  and  extent  under  Revised  Statutes. — 

The  Revised  Statutes,  which  embrace  the  laws  of  the 
United  States  general  and  pennanent  in  their  nature, 
in  force  on  December  1, 1873,  contain  the  following  pro- 
visions as  to  form  and  extent  of  surface  area: — 

§  2329.  Claims  usually  called  "placers,"  includ- 
ing all  forms  of  deposit,  excepting  veins  of  quartz,  or 
other  rock  in  place,  shall  be  subject  to  entr>^  and  pat- 
ent, under  like  circumstances  and  conditions,  and 
upon  similar  proceedings,  as  are  provided  for  vein 
or  lode  claims;  but  where  the  lands  have  been  previ- 
ously sur\^eyed  by  the  United  States,  the  entr^^  m  its 
exterior  limits  shall  conform  to  the  legal  subdivisions 
of  the  public  lands. 

§  2330.  Legal  subdivisions  of  forty  acres  may  be 
subdivided  into  ten-acre  tracts;  and  two  or  more  per- 
sons, or  associations  of  persons,  having  contiguous 
claims  of  any  size,  although  such  claims  may  be  less 

24  17  stats,  at  Large,  p.  91,  §  10;  Comp.  Stats.  1901,  p.  1425;  5  Fed. 
Stats.  Ann.  13. 

25  Ante,  §  72;  St.  Louis  Smelting  Co.  v.  Kemp,  Fed.  Cas.  No.  12,239a, 
21  Fed.  Cas.  205. 


§  448      THE  SURFACE  COVERED  BY  THE  LOCATION.       1044 

than  ten  acres  each,  may  make  joint  entry  thereof; 
but  no  location  of  a  placer  claim,  made  after  the 
ninth  day  of  July,  eighteen  hundred  and  seventy, 
shall  exceed  one  hundred  and  sixty  acres  for  any 
one  person,  or  association  of  persons,  which  location 
shall  conform  to  the  United  States  surveys. 

§  2331.  Where  placer  claims  are  upon  surveyed 
lands,  and  conform  to  legal  subdivisions,  no  further 
survey  or  plat  shall  be  required,  and  all  placer  min- 
ing claims  located  after  the  tenth  day  of  May, 
eighteen  hundred  and  seventy-two,  shall  conform  as 
near  as  practicable  with  the  United  States  system  of 
public-land  surveys,  and  the  rectangular  subdivi- 
sions of  such  surveys,,  and  no  such  location  shall  in- 
clude more  than  twenty  acres  for  each  individual 
claimant;  but  where  placer  claims  cannot  be  con- 
formed to  legal  subdivisions,  survey  and  plat  shall 
be  made  as  on  unsurveyed  lands;  and  where  by  the 
segregation  of  mineral  lands  in  any  legal  subdivi- 
sion a  quantity  of  agricultural  land  less  than  forty 
acres  remains,  such  fractional  portions  of  agricul- 
tural land  may  be  entered  by  any  party  qualified  by 
law,  for  homestead  or  pre-emption  purposes. 

It  will  thus  be  observed: — 

(1)  That  the  unit  or  individual  location  is  twenty 
acres; 

(2)  That  not  more  than  one  hundred  and  sixty  acres 
may  be  embraced  within  one  location  by  an  association 
of  persons,  of  which  there  must  be  at  least  eight  ;^* 

(3)  That  the  location,  if  upon  surveyed  lands,  must 
conform  as  near  as  practicable  to  the  lines  of  the  public 
surveys. 

26  Kirk  V.  Meldrum,  28  Colo.  453,  65  Pac.  633,  636;  Nome  &  Sinook 
Co.  T.  Snyder,  187  Ted.  385,  388;  Hall  v.  McKinnon,  193  Fed.  572,  574. 


1045  FORM  AND  EXTENT.  §  448 

(4)  That  a  ten-acre  tract  is  the  smallest  legal  subdi- 
Tision  of  the  public  lands  recognized  for  placer  loca- 
tion purposes." 

The  smallest  legal  subdivision  of  the  public  surveys 
recognized  by  law  under  the  congressional  system 
regulating  the  disposal  of  lands  other  than  mineral  are 
quarter-quarter  sections  or  forty-acre  tracts,  unless  a 
fractional  quarter  is  divided,  as  it  is  at  times,  into 
lots.^» 

The  land  department  was  called  upon  to  consider  an 
entry  of  a  location  described  as  the  "W.  one-half  of 
lotl."     It  was  held:— 

In  this  case  it  is  clear  that  as  to  the  designated 
portions  of  lot  1  claimed  under  said  entr>^,  the  same 
do  not  conform  to  the  rectangular  or  legal  subdivi- 
sions of  the  public  land  survey  of  the  section  or 
township  in  which  said  lot  is  situated.  While  said 
lot  1  is  in  itself  a  legal  subdivision  of  said  surv^ey  the 
department  is  not  aware  of  any  rule  or  provision  of 
law  whereby  the  subdivision  of  said  lot  into  smaller 
legal  subdivisions  under  the  system  of  public  land 
surveys  may  be  recognized.  It  is  therefore  not  only 
necessaiy  that  an  official  survey  of  the  land  located 
and  claimed  should  be  made  as  required  for  the  pur- 
pose of  proper  description  and  identification  in  the 
patent,  but  such  survey  appears  to  be  plainly  de- 
manded by  the  statute  itself.^" 

As  to  whether  it  is  practicable  to  make  a  location  or 
survey  conform  to  legal  subdivisions  is  a  matter  which 

27  See  Eoman  Placer  M.  aaim,  34  L.  D.  260,  where  the  locator  at- 
tempted to  subdivide  into  five-acre  tracts.  Under  the  coal  land  regu- 
lations, tracts  containing  two  and  one-half  acres  or  multiple  thereof 
may  be  acquired.     Eegulations,  41  L.  D.  528. 

2s  Hopper  v.  Nation,  78  Kan,  198,  96  Pac.  77,  78;  Robinson  v.  For- 
rest, 29  Cal.  323. 

29  Holmes  Placer,  29  L.  D.  368 ;  Chicago  Placer  M.  Claim,  34  L.  D,  9. 
See,  also,  Miller  Placer,  30  L.  D.  225  j  In  re  Knight,  30  L.  D.  227;  Mar7 
Darling  Placer,  31  L.  D.  64. 


§  448  THE  SURFACE  COVERED  BY  THE  LOCATION.  1046 

rests  entirely  with  tlie  land  department.  The  courts, 
however,  are  at  times  called  upon  to  pass  upon  the 
question  in  controversies  between  individuals.'"  The 
land  department  has  fluctuated  between  a  strict  and 
liberal  interpretation  of  the  law. 

Commissioner  McFarland  held  that  the  only  con- 
struction of  the  language  of  the  act,  "as  near  as  prac- 
ticable, ' '  which  is  consistent  with  the  context  of  the  act 
and  the  general  intention  of  congress  is,  that  placer 
locations  upon  surveyed  lands  must  conform  to  the 
public  surveys  in  all  cases,  except  where  this  is  ren- 
dered impossible  by  the  previous  appropriation  or 
reservation  of  a  portion  of  the  legal  subdivision  of  ten 
acres  upon  which  the  claim  is  situated.  The  location 
in  this  case  was  made  in  1880,  and  covered  the  bed  of 
Bear  river,  in  California,  for  twelve  thousand  feet,  fol- 
lowing the  meanderings  of  the  river,  and  embraced  a 
small  quantity  of  surface  ground  along  its  banks.  The 
entry  was  held  for  cancellation." 

This  ruling  of  the  commissioner,  however,  was  re- 
versed by  Secretary  Teller,''  who  held  that  the  placer 
law  of  1870,  which  expressly  required  placer  locations 
to  conform  to  the  lines  of  the  public  surveys,  was  un- 
reasonable, a  hardship,  and  in  contravention  of  the 
established  custom  of  the  mining  regions;  therefore,  it 
was  modified  by  the  act  of  May  10,  1872,  so  as  to  pro- 
vide for  exceptional  cases  where  reason  and  common 
sense  required  a  different  regulation. 

The  case  of  the  Bear  river  claim  was  of  this  excep- 
tional character.  The  placer  deposit  was  in  a  canyon 
on  the  banks  of  a  very  crooked  stream,  and  where  the 

30  E.  g.,  Mitchell  v.  Hutchinson,  142  Cal.  404,  76  Pac.  55,  56. 

31  10  Copp's  L.  O.  3.     See,  also,  Copp's  Min.  Lands,  115. 

32  Eablin's  Placer,  2  L.  D.  764;  Esperance  M.  Co.,  10  Copp's  L.  0. 
338. 


1047  FORM  AND  EXTENT.  §  448 

adjoining  lands  were  totally  unfit  for  mining  or  agri- 
cultural purposes.  The  placer  applicant  was  pennitted 
to  proceed  to  patent. 

There  can  be  no  question  but  that  this  ruling  is  in 
harmony  with  the  custom  of  miners  in  California.  This 
particular  river  was,  from  1852  to  1867,  the  scene  of 
great  mining  activity,  and  for  miles  up  and  down  the 
stream,  during  the  season  when  the  stage  of  the  water 
would  permit,  miners  claimed,  occupied,  and  worked 
its  bed,  bars,  and  banks,  under  regulations  defining  the 
extent  of  their  claims  by  a  certain  number  of  feet  along 
the  stream,  and  a  width  extending  to  the  sides  of  the 
gulch.  The  supreme  court  of  California  in  a  compara- 
tively recent  period  has  recognized  the  right  of  a  placer 
locator  on  surv^eyed  lands  to  make  a  location  in  an 
irregular  form  and  not  conforming  to  the  public  sur- 
veys." 

These  irregular  claims  on  both  surveyed  and  unsur- 
veyed  lands  have  been  before  the  land  department  fre- 
quently in  recent  years,  and  in  some  instances  they 
have  been  of  such  extensive  length  and  disproportion- 
ately narrow  width''  as  to  invite  caustic  criticism  on 
the  part  of  the  land  department  officials.  We  append 
an  example : — 

Even  if  it  were  not  a  question  of  statutory  require- 
ment, the  frequent  fantastic  outlines  of  numbers  of 
placer  locations  which  have,  of  late  years,  come  to 
the  attention  of  the  department,  would  manifest  the 
unwisdom  of  the  recognition  foiTuerly  accorded  such 
nonconforming  claims.  With  the  gradual  diminu- 
tion of  the  public  domain  this  question  presents  itself 
as  one  of  increasing  importance  and  the  illegality  of 
locations  of  such  elongated  narrow  character  often 

88  Mitchell  V.  Hutchinson,  142  Cal.  404,  76  Pac.  55,  56. 
34  In  one  case   (unreported)   the  location  was  sixteen  miles  long  and 
fifty-one  feet  wide,  containing  a  little  in  excess  of  one  hundred  acres. 


§  448      THE  SURFACE  COVERED  BY  THE  LOCATION.       1048 

following  the  course  of  and  embracing  streams  of 
water  which  the  claimants  seek  to  control  is  made 
more  apparent.^'* 

This  language  was  used  in  considering  the  applica- 
tion of  a  placer  claim  more  than  one  and  one-half  miles 
long  with  a  width  varying  from  two  hundred  and  fifty 
to  six  hundred  feet. 

In  the  case  of  Snowflake  Fraction  Placer^®  the 
secretary  of  the  interior  reviewed  all  the  previous  de- 
cisions on  the  subject,  and  so  far  as  we  are  advised  the 
opinion  in  this  case  is  the  last  published  expression  of 
the  department. 

The  secretary  states  that  the  department  would  now 
"be  unwilling  to  approve  such  long  and  irregular  shaped 
claims  as  had  been  previously  allowed  and  patented. 
We  extract  the  following  from  the  opinion : — 

Whether  placer  claims  conform  sufficiently  is  a 
question  of  fact  to  be  determined  by  the  department. 
Each  case  must  be  decided  on  its  own  facts.  It  is 
the  policy  of  the  government  to  have  entries,  whether 
they  be  for  agricultural  or  mining  lands,  in  compact 
form.  Congress  has  repeatedly  announced  this  prin- 
ciple and  the  department  has  always  and  does  now 
insist  upon  it.  The  public  domain  must  not  be  cut 
into  long  and  narrow  strips.  No  shoestring  claims 
should  ever  receive  the  sanction  of  the  department. 

The  circuit  court  of  appeals,  ninth  circuit,  appar- 
ently concurs  in  this  view.^^ 

In  the  Snowflake  case,  however,  the  secretary 
makes  two  distinct  departures  from  prior  departmental 
rulings  which  deserve  to  be  noted.  It  had  been  previ- 
ously held  that  the  fact  that  a  placer  claim  was  sur- 

35  Laughing  Water  Placer,  34  L.  D.  56,  58. 

36  37  L.  D.  250. 

8T  Hanson  v.  Craig,  170  Fed.  62,  65,  &5  C.  C,  A.  338, 


1049  FORM  AND  EXTENT.  §  448 

rouDded  by  other  locations  furnished  no  excuse  for 
nonconfoiTaity  with  the  system  of  public  surveys.'* 

This  rule  no  longer  obtains.     A  location  may  be 
made  of  vacant  land  surrounded  by  prior  claims,  and 
its  boundaries  may  conform  thereto  regardless  of  the 
irregularity  of  form  thus  produced. 
It  had  been  previously  ruled  that — 

The  mining  laws  contemplate  that  in  all  cases  ex- 
cept in  instances  where  impracticable  to  do  so,  placer 
mining  claims  must  be  made  in  conformity  with  the 
system  of  public  land  surveys,  that  is,  rectangular 
in  form  and  of  dimensions  corresponding  to  appro- 
priate legal  subdivisions  and  with  east-and-west,  and 
north-and-south  boundary  lines.'' 

This  rule  has  been  modified  by  the  Snowflake  case 
by  waiving  the  requirement  that  the  location  should 
conform  to  the  cardinal  points. 

Succinctly  stated,  the  rules  now  followed  by  the  land 
department  are  as  follows: — 

1.  The  location  upon  surveyed  lands  must  conform 
to  the  subdivisions  of  the  public  surveys.  Exception 
to  this  rule  may  be  permitted  where  by  reason  of  prior 
patents  or  other  recognized  segregations  a  tract  of 
vacant  land  of  irregular  form  is  vacant  and  subject  to 
appropriation;  such  irregular  tract  may  be  located 
conforming  to  the  boundaries  of  the  segregated  tracts. 
It  is  possible  that  other  deviations  from  the  rule  of 
conformity  may  be  sanctioned,  but  the  circumstances 
must  be  of  such  controlling  force  that  it  would  be 
manifestly  inequitable  to  refuse  to  recognize  them. 
This  is  a  question  which  must  be  determined  as  each 

38  Rialto  No.  2  Placer  Claims,  34  L.  D.  44;  Laughing  Water  Placer, 
34  L.  D.  56, 

39  Laughing  Water  Placer,  34  L,  D.  56 j  Roman  Placer,  34  L.  D.  260. 


§  448      THE  SURFACE  COVERED  BY  THE  LOCATION.       1050 

case  is  presented,  it  being  impossible  to  prescribe  any 
definite  rule,  which  should  control  all  cases. 

2.  If  on  unsurveyed  lands,  the  locations  should  be 
in  square  form,  or  at  least  rectangular. 

It  is  the  view  of  this  department  that  a  claim 
hereafter  located  by  one  or  two  persons  which  can 
be  entirely  included  within  a  square  forty-acre  tract, 
and  a  claim  located  by  three  or  four  persons  which 
can  be  entirely  included  in  two  square  forty-acre 
tracts,  placed  end  to  end  and  a  claim  located  by  five 
or  six  persons  which  can  be  entirely  included  in  three 
square  forty-acre  tracts,  and  a  claim  located  by 
seven  or  eight  persons  which  can  be  entirely  included 
in  four  square  forty-acre  tracts  should  be  approved. 
In  stating  this  rule,  it  is  necessary  to  say  that  we  do 
not  intend  that  the  forties  which  are  made  the  unit 
of  measure  should  necessarily  have  north-and-south 
and  east-and-west  boundary  lines." 

The  Snowflake  case  arose  in  Alaska,  and  it  was  in 
view  of  the  conditions  existing  in  that  territory  that 
the  department  felt  called  upon  to  review  the  entire 
subject  and  establish  as  near  as  it  was  possible  to  do  so 
a  general  rule  for  the  future  guidance  of  locators. 

The  standard  size  of  placer  claims,  as  defined  by  the 
local  rules  in  Alaska,  is  a  parallelogram  1320x660  feet, 
which  contains  an  area  exactly  of  twenty  acres,  the 
equivalent  of  two  ten-acre  tracts  in  square  form  placed 
end  to  end,  the  direction  conforming  ordinarily  to  the 
course  of  the  stream  or  stream-bed,  upon  or  adjacent 
to  which  (bench  claims)  the  locations  are  made.  The 
courts  have  generally  recognized  the  validity  of  these 
locations. 

Under  the  act  of  congress  passed  August  1,  1912,  the 
text  of  which  will  be  found  in  section  450  of  this  trea- 

40  Snowflake  Placer,  37  L.  D.  250,  258. 


1051  FORM  AND  EXTENT.  §  448 

tise,  it  is  provided  that  no  association  placer  claim 
thereafter  located  in  Alaska  shall  exceed  forty  acres, 
and  that  no  such  claim  shall  be  patented  which  is  longer 
than  three  times  its  greatest  width.  This  would  pre- 
vent the  patenting  of  a  forty-acre  association  claim,  or 
a  consolidation  of  two  individual  claims  which  were 
located  in  the  standard  form  now  in  vogue.  Two 
twenty-acre  tracts  in  this  form,  placed  end  to  end, 
would  form  a  parallelogram  2640x660  feet,  or  a  length 
in  excess  of  three  times  its  width. 

We  think  this  act,  however,  allows  a  greater  liberty 
as  to  form  than  that  indicated  by  the  ruling  of  the 
secretar>^  in  the  Snowflake  case.  But  the  opinion  of 
the  secretaiy  and  the  act  of  congress  were  manifestly 
framed  for  the  purpose  of  discouraging  a  practice 
somewhat  popular  and  limiting  a  privilege  at  times 
flagrantly  abused,  of  making  "shoestring"  locations 
along  the  banks  and  including  the  water  of  running 
streams. 

The  later  rulings  of  the  department  do  not  change 
the  interiDretation  of  the  law.  They  simply  express  a 
policy  which  in  the  future  will  govern  the  land  officers 
in  passing  upon  each  individual  case  as  it  is  presented.*^ 

A  patent  for  a  placer  claim  should  describe  with 
mathematical  accuracy  the  land  intended  to  be  con- 
veyed thereby,  and  where  such  a  degree  of  accuracy 
cannot  be  obtained  under  an  application  that  embraces 
land  theretofore  surveyed  and  returned  in  irregular 
subdivisions  as  "lots,"  an  additional  sui-vey  will  be 
required.*^ 

*i  For  illustration  of  the  manner  of  describing  minor  subdivisions 
located  as  placers,  see  Mining  Circular,  March  29,  1909,  par.  24.  See 
Appendix. 

*2  Holmes  Placer,  26  L.  D.  650;  Chicago  Placer  M.  Claim,  34  L.  D.  9. 


§  448  THE  SURFACE  COVERED  BY  THE  LOCATION.  1052 

Lands  must  be  treated  as  unsurveyed  until  the  plat  is 
finally  approved,"  and  filed  in  tlie  local  office.** 

Sometimes  part  of  a  township  has  been  surveyed,  so 
that  as  a  matter  of  calculation  it  is  not  difficult  to  deter- 
mine the  precise  or  proximate  position  of  adjoininsj 
unsurveyed  lands  and  the  section  number  which  would 
be  given  them  when  surveyed.  The  proximity  of  the 
unsurveyed  to  the  surveyed  lands  has  led  to  an  error 
quite  common  of  treating  these  unsurveyed  lands  as  if 
the  lines  of  the  public  surveys  had  been  extended  over 
them,  and  locating  placer  claims  thereon  by  the  govern- 
ment subdivision  which  the  locator  determines  would 
be  created  when  the  system  of  surveys  is  extended  over 
them.  But  such  a  description  would  not  identify  any- 
thing and  would  not  satisfy  the  law." 

It  may  be  practicable  where  discoveries  are  made  in 
a  region  over  which  the  public  surveys  have  been  par- 
tially extended  to  perfect  by  unofficial  and  private  sur- 
veys the  township  and  section  lines,  and  in  addition  to 
a  description  by  metes  and  bounds,  which  would  cer- 
tainly be  necessary,  there  might  be  added  a  statement 
that  the  subdivision  so  located  would,  if  the  govern- 
ment surveys  were  extended,  embrace  such  and  such  a 
tract,  describing  the  probable  result  of  the  extension  of 
such  surveys.  But  this  would  be  impracticable  in  most 
cases,  and  would  entail  an  expense  upon  a  placer  loca- 
tor not  contemplated  by  the  law  and  the  results  of 

43  Copp's  Min.  Dec.  41.  Ante,  §§  104,  105,  142;  BuUock  v.  Eouse,  81 
Cal.  590,  595,  22  Pac.  919;  Medley  v,  Eobertson,  55  Cal.  396. 

**  In  re  Hyde  &  Co.,  37  L.  D.  164,  and  cases  cited;  Smith  v.  City  of 
Los  Angeles,  158  Cal.  702,  112  Pae.  307,  310. 

45  Terry  v.  Megerle,  24  Cal.  610,  625,  85  Am.  Dec.  84;  Barnard's 
Heirs  v.  Ashley's  Heirs,  18  How.  43,  48,  15  L.  ed.  285;  Grogan  v. 
Knight,  27  Cal.  516,  521;  Robinson  v.  Forrest,  29  Cal.  318,  322;  Middle- 
ton  V.  Low,  30  Cal.  596,  604;  State  v.  Central  Pac.  R.  R.,  21  Nev.  94, 
25  Pac.  442,  450;  BuUo<;k  v.  Rouse,  81  Cal.  590,  22  Pac.  919,  920. 


1053  LIMITATION  AS  TO  SIZE  AND  FORM.  §  448a 

which  would  in  no  sense  be  binding  upon  the  govern- 
ment. In  new  regions  over  which  the  government 
has  as  yet  established  neither  base  nor  meridian 
lines,  as  in  Alaska,  or  in  the  unsurveyed  public  domain 
far  removed  from  surveyed  public  lands,  the  method 
is  not  only  impracticable  but  impossible. 

§  448a.  Limitation  a^  to  size  and  form  of  claims  un- 
der district  rules. — During  the  period  when  placer  min- 
ing claims  were  governed  entirely  by  the  local  district 
regulations,  the  size  and  shape  of  the  claims  varied  in 
different  localities,  based  somewhat  on  the  manner  of 
occurrence  of  the  deposits.  Since  the  passage  of  the 
congressional  laws  on  the  subject  there  has  been  no  at- 
tempt by  state  or  territorial  legislation  to  limit  the  size 
of  claims  to  less  than  the  unit  of  location  sanctioned  by 
the  United  States  mining  laws, — i.  e.,  twenty  acres. 

As  to  the  power  of  the  local  mining  districts  to  pro- 
vide for  such  limitation,  there  has  been  but  little  dis- 
cussion by  the  courts. 

The  supreme  court  of  Idaho  expressed  the  view  that 
such  a  rule  or  custom  was  reasonable  and  entirely  in 
harmony  with  the  spirit  of  the  laws.*® 

The  regulations  of  the  land  department  for  many 
years  contained  the  following: — 

The  foregoing  provisions  of  the  law  are  construed 
to  mean  that  after  the  ninth  day  of  July,  1870,  no 
location  of  a  placer  claim  can  be  made  to  exceed  one 
hundred  and  sixty  acres  whatever  may  be  the  num- 
ber of  locators  associated  together,  or  whatever  the 
local  regulations  of  the  district  may  allow;  and  that 
from  and  after  May  10,  1872,  no  location  made  by  an 
individual  can  exceed  twenty  acres,  and  no  location 
made  by  an  association   of  individuals   can   exceed 

46  Rosenthal  v.  Ives,  2  Idaho,  244,  12  Pac.  904,  906,  15  Morr.  Min. 
Kep.  324. 


§  448a         the  surface  covered  by  the  location.  1054 

one  hundred  and  sixty  acres,  wliicli  location  of  one 
hundred  and  sixty  acres  cannot  be  made  by  a  less 
number  than  eight  bona  fide  locators;  and  no  local 
laws  or  mining  regulations  can  restrict  a  placer  loca- 
tion to  less  than  twenty  acres,  although  the  locator 
is  not  compelled  to  take  so  much" 

This  was  changed,  however,  by  the  adoption  of  later 
rules,  which  eliminated  the  last  clause  quoted  above  in 
italics.*^ 

Whether  this  indicates  a  change  of  opinion  on  the 
part  of  the  department  as  to  the  power  of  the  local  dis- 
tricts to  place  a  limitation  on  the  size  of  claims,  or  sug- 
gests that,  in  the  judgment  of  the  secretary,  the  subject 
was  one  not  strictly  within  the  scope  of  departmental 
regulations,  or  that  the  interpretation  of  the  statute 
should  not  be  prejudged  by  him  until  his  jurisdiction 
in  a  contested  case  should  be  invoked,  is  difficult  to  de- 
termine. 

The  regulations  of  the  Cape  Nome  mining  district, 
Alaska,  adopted  October  15,  1898,  provided  that  placer 
claims  should  be  located  thirteen  hundred  and  twenty 
feet  long  by  six  hundred  and  sixty  feet,  making  an  area 
of  twenty  acres. 

The  validity  of  this  regulation,  so  far  as  it  prescribed 
the  form  of  the  location,  was  involved  in  a  suit  tried  in 
the  United  States  district  court  for  the  district  of 
Alaska,  second  division. 

The  court  held  that — 

No  miner's  rule,  regulation,  or  custom  can  limit 
him  in  the  area  or  form  of  his  claim,  nor  in  its  width 
or  length;  that  any  such  rule,  regulation,  or  custom 

47  Circular,  Dec.  10,  1891,  par.  ©1. 

48  Circular,  Dec.  15,  1897,  par.  35,  25  L.  D.  573;  Circular,  June  24, 
1899,  par.  35,  28  L.  D.  599;  Circular,  July  26,  1901,  par.  29;  Regula- 
tions, March  29,  1909,  par.  29.     See  Appendix. 


1055  SURFACE  CONFLICTS.  §  44:8b 

is  void  for  conflict  with  both  the  spirit  and  the  letter 
of  the  placer  mining  law." 

This  case  was  taken  to  the  circuit  court  of  appeals 
and  the  judgment  was  affirmed,  the  court,  however, 
holding  that  it  was  not  necessary  to  pass  upon  this 
question.®"  As  congress  has  passed  an  act  governing- 
placer  locations  in  Alaska,  and  as  the  instance  must  be 
rare  where  mining  locations  are  limited  by  local  rules 
to  an  area  less  than  twenty  acres,  the  question  is  rela- 
tively unimportant. 

§  448b.  Surface  conflicts  with  prior  locations. — The 
reasons  assigned  by  the  courts  for  permitting  junior 
lode  claimants  to  place  the  lines  of  their  locations  upon 
or  across  lands  which  have  been  previously  appro- 
priated, a  matter  fully  discussed  in  preceding  sec- 
tions,®^ do  not  apply  with  equal  force  to  placers.  Yet 
the  doctrine  as  to  lode  claims  having  been  extended  by 
the  department  so  as  to  authorize  the  junior  lode 
locator  to  so  locate  his  claim  across  prior  locations  and 
patented  surfaces  as  to  divide  the  lode  claim  into  non- 
contiguous tracts,  the  application  of  a  similar  doctrine 
in  a  modified  form  to  placer  claims  was  not  unexpected. 
The  practice  at  one  time  sanctioned  by  the  department 
may  be  briefly  summarized:  A  placer  locator  might 
locate  a  given  subdivision  of  the  public  surveys  not  ex- 
ceeding the  statutory  limit  of  twenty  acres,  and  an 
association  might  locate  not  exceeding  one  hundred 
and  sixty  acres,  and  the  location  might  properly  de- 
scribe the  land  located  by  the  proper  legal  subdivision, 
although  the  tract  so  located  embraced  within  its  ex- 
terior limits  prior  segregated  and  patented  lode  claims, 

49  Price  V.  Mcintosh,  1  Alaska,  286,  300. 

60  Mcintosh  V.  Pricg,  121  Fed.  716,  718,  58  C.  C.  A.  136. 

61  §§363,  363a. 


§  448b        the  surface  covered  by  the  location.  1056 

thus  dividing  the  placer  claim  into  noncontiguous 
tracts.  It  was  ruled  that  the  patent  when  issued 
should  describe  the  land  by  proper  legal  subdivisions, 
excepting,  however,  the  tracts  which  have  been  previ- 
ously segregated.  In  other  words,  the  government 
night  grant  to  the  placer  claimant  the  particular  sub- 
division less  what  it  had  theretofore  conveyed  to 
others." 

This  rule,  however,  was  held  to  have  no  application 
to  placer  claims  upon  unsurveyed  public  lands."  The 
department  had  previously  held  that  there  is  no  au- 
thority for  placing  the  lines  of  a  placer  location  within, 
upon  or  across  other  claims  embracing  lands  which 
have  been  patented  or  regularly  entered  under  the 
public  land  laws." 

The  present  attitude  of  the  department,  however,  as 
announced  in  the  case  of  Snowflake  placer,"  discour- 
ages, if  not  inhibits,  the  laying  of  the  lines  of  a  placer 
claim  over  prior  claims  or  other  segregations.  It  now 
pennits  locations  of  irregular  shape  to  be  made  con- 
forming to  boundaries  of  other  claims  which  eliminates 
the  necessity  of  making  locations  in  rectangular  form 
for  the  purpose  of  securing  odd  fractions  not  included 
in  the  boundaries  of  previous  locations,  a  method 
which,  as  we  have  seen,  at  one  time  was  not  favored  by 
the  department. 

The  attitude  of  the  courts  on  this  subject,  so  far  as 
they  have  expressed  an  opinion,  is  illustrated  in  the 
case  of  Stenf  jeld  v.  Espe,  decided  by  the  circuit  court 
of  appeals,  ninth  circuit,"  the  facts  of  which  are  illus- 

62  In  re  Mary  Darling,  31  L.  D.  64;  Rialto  No.  2  Placer  Mining 
Claims,  34  L,  D.  44;  Laughing  Water  Placer,  34  L,  D.  56. 

63  Golden  Chief  A.  Placer  Claims,  35  L.  D.  557. 

64  Grassy  Gulch  Placer,  30  L.  D.  191. 

65  37  L.  D.  250. 

6«  171  Fed.  825,  828,  96  C.  C.  A.  497. 


1057 


SURFACE  CONFLICTS. 


§448b 


trated  by  a  diagram,  which  we  herewith  reproduce  as 
figure  41a. 


FiGUKE  41a. 

The  Hercules  No.  1  was  an  association  claim  cover- 
ing an  area  of  one  hundred  and  seventy-nine  acres.  It 
was  made  for  the  avowed  purpose  of  appropriating  the 
noncontiguous  fractions  occurring  between  the  bound- 
ary lines  of  previous  locations.  These  fractions  are  let- 
tered on  the  figure  as  A,  B,  C,  D,  E,  the  remaining 
area  being  covered  by  previously  located  placer  claims. 

The  court,  after  reviewing  the  different  rulings  of 
the  land  department,  decided  that  these  fractions  could 
not  be  appropriated  in  that  manner,  that  the  locators 

Lindley  on  M. — 67 


§  448c     THE  SURFACE  COVERED  BY  THE  LOCATION.       1058 

of  tlie  Hercules  should  have  made  separate  loca- 
tions of  the  vacant  tracts,  and  that  no  reason  could 
be  suggested  for  permitting  a  junior  locator  of  a  placer 
claim  to  lay  his  lines  across  a  claim  already  located. . 
The  court  pointed  out  the  distinction  between  lode 
locations  and  placer  claims,  and  held  that  the  reasons 
which  sanction  the  placing  of  lines  of  a  lode  location 
over  those  of  a  prior  claim  had  no  application  to  the 
location  of  placer  claims. 

The  district  court  of  appeals  of  California  follows 
the  rule  sanctioned  by  the  department  as  it  stood  prior 
to  the  decision  in  the  Snowflake  case,  and  as  stated  by 
the  author  in  the  second  edition  of  this  treatise.®'' 

This  ruling  was  announced  prior  to  the  decision  of 
the  circuit  court  of  appeals,  ninth  circuit,  mentioned 
above.  The  facts  in  the  California  case,  however,  may 
be  differentiated  from  the  federal  case.  In  the  former 
the  location  was  upon  surveyed  land  and  there  were  no 
noncontiguous  tracts  involved.  In  the  latter,  the  lands 
were  unsurveyed  and  the  tracts  noncontiguous.  In  the* 
California  case  the  locator  followed  the  then  prevail- 
ing rule  of  the  department  as  to  the  necessity  for  con- 
forming to  the  lines  of  the  public  surveys,  and  would 
undoubtedly  have  received,  and  would  now  receive,  a 
patent  for  the  tract  as  located,  excepting  the  previously 
patented  land.  His  rights  would  not  be  prejudiced  by 
the  changed  rulings. 

§  448c.  Excessive  placer  locations. — The  law  con- 
templates that  the  location  of  placer  claims  shall  ordi- 
narily be  made  by  legal  subdivisions.  When  a  location 
is  made  according  to  such  subdivisions,  no  provision 
is  made  for  surv^eying  it  again,  for  the  evident  reason 
that  it  is  located  as  per  survey  that  has  already  been 

67  Green  v,  Gavin,  10  CaL  App.  330,  101  Pac.  931,  933. 


1059  EXCESSIVE  PLACER  LOCATIONS.  §  4480 

made  by  the  United  States.  The  notice  of  location  is  a 
notice  of  its  boundaries  precisely  as  it  would  be  in  case 
of  a  homestead  or  pre-emption  claim,"  and  there  is  but 
little  opportunity  for  locators  to  include  excessive  area. 
It  occasionally  happens  that  by  reason  of  segregation 
within  a  section,  or  by  reason  of  irregularity  in  survey, 
tracts  are  platted  as  fractional  lots,  which  at  times  are 
found  to  contain  more  than  a  regular  subdivision.  So 
that  it  may  happen,  for  example,  that  a  given  quarter- 
section  may  contain  more  than  one  hundred  and  sixty 
acres.  In  certain  classes  of  nonmineral  entries  the  en- 
trj^man  would  be  pennitted  to  take  and  pay  for  the 
excess.  This  is  termed  the  rule  of  approximation. 
This  rule,  however,  does  not  apply  to  mining  locations. 
A  sur^^eyed  subdivision  containing  one  hundred  and 
sixty-five  acres  would,  if  located  by  eight  persons,  be 
excessive,  and  the  excess  would  have  to  be  cast  off  by 
survey.^® 

Where  the  location  is  on  unsurveyed  lands,  excesses 
may  and  frequently  do  occur.  It  is  well  settled  that 
excessive  locations  are  valid  except  as  to  the  excess. 
As  heretofore  pointed  out^°  in  cases  of  loae  locations  of 
this  character,  the  locator  himself  by  the  calls  for  dis- 
tance from  his  discovery  point  furnishes  a  guide  for 
casting  off  the  excess.  But  with  placers  there  is  no 
such  guide.  If  within  the  boundaries  as  staked  there 
is  an  excessive  area,  there  is  ordinarily  no  data  in  the 
posted  or  recorded  notice  which  would  enable  a  subse- 
quent locator  to  determine  the  precise  position  of  the 
excess. 

88  Kern  Oil  Co.  v.  Crawford,  143  Cal.  298,  76  Pac.  1111,  1113. 

59  Chicago  Placer  Mining  Claim,  34  L.  D.  9.  If,  however,  the  excess 
should  be  negligible,  the  locations  would  be  permitted.  Eight  Oil  Co., 
unreported. 

60  Ante,  §  362. 


§  449  THE  SURFACE  COVERED  BY   THE  LOCATION.  1060 

Most  of  these  excessive  placer  locations  have  oc- 
curred in  Alaska  over  which  the  public  surveys  have 
not  as  yet  been  extended  and  the  discussion  of  the 
method  of  casting  off  excess  is  found  in  the  decisions 
of  the  federal  courts. 

In  Mcintosh  v.  Price®^  the  circuit  court  of  appeals, 
ninth  circuit,  after  reiterating  the  legal  principle  that 
locations  of  this  character  were  only  void  as  to  the  ex- 
cess, announced  the  rule  that  owners  having  located  in 
good  faith,  being  in  possession  and  working  the  claim, 
could  not  be  deprived  of  the  right  to  select  the  portion 
of  the  claim  they  would  elect  to  hold  by  an  adverse 
entry  of  another  party  seeking  to  locate  a  portion  of 
the  same  ground,  and  that  this  right  of  selection  could 
be  exercised  within  a  reasonable  time  after  the  original 
locator  had  been  notified  or  had  knowledge  that  his 
location  as  marked  on  the  ground  was  excessive.  This 
rule  is  fully  recognized  in  subsequent  cases.®^  An  ad- 
verse locator  attempting  to  relocate  any  part  of  such 
claim  is  a  trespasser  and  his  location  is  a  nullity." 

§  449.  Placer  locations  by  corporations. — As  here- 
tofore noted,®*  the  supreme  court  of  the  United  States 
has  determined  that  a  domestic  corporation  formed 
under  the  laws  of  a  state  may  locate  public  mineral 
lands,  but  intimates  that  there  may  be  some  question 
raised  as  to  the  extent  of  a  claim  which  a  corporation 
may  be  permitted  to  locate  as  an  original  discoverer, 

61  121  Fed.  716,  719,  58  C.  C.  A.  136. 

62  Zimmerman  v.  Funchion,  161  Fed.  859,  860,  36  C.  C.  A.  53,  1  Water 
&  Min.  Cas.  437;  Waskey  v.  Hammer,  170  Fed.  31,  34,  95  C.  C.  A.  305; 
Jones  V.  WUd  Goose  M.  &  T.  Co.,  177  Fed.  95,  98,  29  L.  R.  A.,  N.  S., 
392,  101  C.  C.  A.  349. 

63  Jones  V.  Wild  Goose  M.  &  T.  Co.,  177  Fed.  95,  98,  29  L.  E.  A., 
N.  S.,  392,  101  C.  C.  A.  349. 

64  Ante,  §  226. 


1061        PLACER  LOCATIONS  BY  CORPORATIONS.        §  445 

suggesting  that  it  might  perhaps  be  treated  as  one 
person  and  entitled  to  locate  only  to  the  extent  per- 
mitted a  single  individual." 

The  placer  law  quoted  in  a  preceding  section^'  per- 
mits an  ''association  of  persons"  to  locate  not  to  ex- 
ceed one  hiandred  and  sixty  acres.  A  corporation  is  an 
associavioD  of  persons;  at  the  same  time  we  must  admit 
that  it  is  but  an  artificial  person. 

In  the  case  of  United  States  v.  Trinidad  Coal  Com- 
pany,*^ the  supreme  court  of  the  United  States  said 
that — 

The  words  "association  of  persons"  are  often  and 
not  inaptly  employed  to  describe  a  corporation.  An 
incorporated  company  is  an  association  of  indi- 
viduals acting  as  a  single  person  and  by  their  cor- 
porate name. 

This  case  involved  the  validity  of  patents  issued  on 
coal  land  entries,  the  action  having  been  brought  by 
the  government  to  vacate  them  on  the  ground  of  fraud. 
The  coal  land  laws"  give  to  an  individual  the  right  to 
enter  one  hundred  and  sixty  acres  and  to  an  associa- 
tion of  persons  three  hundred  and  twenty  acres.  The 
court  held  that  the  purpose  of  the  government  would 
be  defeated  altogether,  if  it  should  be  held  that  cor- 
porations were  not  ''associations  of  persons"  within 
the  meaning  of  the  statute  and  subject  to  its  restric- 
tions. We  do  not  think  this  case,  however,  can  be 
applied  by  analogy  to  the  placer  mining  laws,  so  as  to 
establish  the  rule  that  a  corporation  as  an  association 

6»  McKinley  v.  Wheeler,  130  U.  S.  630,  636,  9  Sup.  Ct.  Rep.  638,  32 
L.  ed.  1048,  16  Morr.  Min.  Rep.  65. 

66  Atite,  §  448. 

67  137  U.  S.  160,  160,  11  Sup.  Ct.  Rep.  57,  34  L.  ed.  640. 

68  Eev.  Stats.,  §2347;  17  Stata.  at  Large,  607;  Comp.  Stats.  1901, 
p.  1440;  5  Fed.  Stats.  Ann.  55. 


§  450  THE  SURFACE  COVERED  BY  THE  LOCATION.  1062 

of  persons  may  locate  one  hundred  and  sixty  acres  of 
placer  land. 

The  land  department  has  held  that — 

The  reasonable  conclusion  is  that  within  the  legis- 
lative contemplation  whenever  a  corporation  locates 
a  lode  or  placer  claim  under  the  mining  laws,  it  does 
so  in  its  strictly  corporate  capacity  and  that  it  is 
with  respect  to  it  as  a  corporate  entity,  rather  than 
in  the  collective  capacity  of  the  stockholders  that  the 
provisions  of  those  laws  should  be  applied.®' 

In  other  words,  a  placer  location  made  by  a  corpora- 
tion cannot  exceed  twenty  acres.  The  corporation  oc- 
cupies the  status  of  an  individual. 

This  ruling  has  been  followed  uniformly  by  the  de- 
partment.^" 

Inferentially,  at  least,  the  rule  finds  support  in  the 
decision  by  United  States  Circuit  Judge  Ross  in  Gird 
V.  California  Oil  Company.'^^  We  think  in  practice 
that  the  rule  as  stated  by  the  land  department  is  now 
generally  accepted  throughout  the  mining  regions. 

Locations  made  by  a  number  of  persons  in  the  inter- 
est of  a  corporation  or  of  a  single  individual  are  dis- 
cussed in  the  next  section. 

§  450.  Locations  by  several  persons  in  the  interest 
of  one — Number  of  locations  by  an  individual. — It  is  a 
matter  of  frequent  occurrence  that  an  individual 
locator,  desiring  to  obtain  more  ground  than  he  is  per- 
mitted under  the  law  to  appropriate  in  his  individual 
capacity  by  a  single  location,  resorts  to  the  use  of 
"dummies,"  and  perfects  locations  in  their  names,  sub- 

69  Igo  Bridge  Extension  Placer,  38  L.  D.  281. 

70  Bakersfield  Fuel  &  Oil  Co.,  39  L.  D.  460;  Coalinga  Hub  Oil  Co., 
40  L.  D.  401. 

71  60  Fed.  531,  545. 


1063  NUMBER  OF  LOCATIONS  BY  AN   INDIVIDUAL.  §  450 

sequently  obtaining  conveyances  thereof.     The  courts 
have  held  that  this  is  a  fraud  upon  the  government." 

The  policy  of  the  government  in  disposing  of  the 
mineral  lands  as  well  as  other  portions  of  the  public 
domain  is  to  make  a  general  distribution  among  as 
large  a  number  as  possible  of  those  who  wish  to  ac- 
quire such  land  for  their  own  use  rather  than  to  favor 
a  few  individuals  who  might  wish  to  acquire  princely 
fortunes  by  securing  large  tracts  of  such  lands,  and 
it  is  contrary  to  this  policy  and  to  the  provisions  of 
sections  twenty-three  hundred  and  thirty  and 
twenty-three  hundred  and  thirty-one  of  the  Revised 
Statutes  for  one  person  to  cover  more  than  twenty 
acres  of  placer  ground  by  one  location  by  the  device 
of  using  the  name  of  his  employees  and  friends  as 
locators. ^^ 

The  privilege  given  by  congress  to  an  association  of 
persons  consisting  of  not  more  than  eight  individuals 
to  locate  one  hundred  and  sixty  acresj  or  twenty  acres 
for  each  associate  not  exceeding  eight,  would  seem  to 
contemplate  the  bona  fide  association  together  of  two 
or  more  individuals  by  mutual  agreement  and  express 
consent,  or  a  subsequent  ratification  of  locations  made 
by  one  for  the  benefit  of  the  others.  The  practice  has 
been  common  for  individual  prospectors  or  promoters 
to  use  names  either  without  prior  authority  or  with 
the  express  understanding  that  the  parties  whose 
names  are  thus  used  are  to  convey  to  the  prospector  or 
promoter.     In   many    instances    the    same    group     of 

T2  Mitchell  V.  Cline,  84  Cal.  409,  24  Pac.  164,  166;  Gird  v.  California 
Oil  Co.,  60  Fed.  531,  538;  Cook  v.  Klonos,  164  Fed.  529,  537,  90  C.  C. 
A.  403;  Nome  &  Sinook  Co.  v.  Snyder,  187  Fed.  385,  388,  109  C.  C.  A. 
217,  1  Water  &  Min.  Cas.  202;  Coalinga  Hub  Oil  Co.,  40  L.  D.  401. 
See,  also,  Riverside  Sand  &  Cement  Co.  v.  Hardwick,  16  N.  M.  479,  120 
Pac.  323,  distinguishing  the  California  eases  supra.  Also  Borgwardt  v. 
McKittrick  Oil  Co.   (Cal.),  130  Pac.  417,  419. 

73  Durant  v.  Corbin,  94  Fed.  382,  20  Morr.  Min.  Rep.  84. 


§  450  THE   SURFACE  COVERED  BY   THE  LOCATION.  1064 

names  is  thus  used  for  a  large  number  of  locations  in 
the  same  locality,  thus  facilitating  the  absorption  by 
one  individual  of  large  areas  of  the  public  mineral 
domain  in  contravention  of  the  spirit  of  the  mining 

laws. 

With  the  exception  of  salines  and  placer  claims  in 
the  territory  of  Alaska,  where  there  is  now  by  con- 
gressional act,  to  be  hereafter  noted,  a  limitation  upon 
the  number  of  placer  claims  which  an  individual  or  an 
association  may  locate,  it  is  well  settled  that  both  an 
individual  and  a  bona  fide  association  of  persons  may 
locate  as  many  claims  as  they  desire.  There  is  no  re- 
striction as  to  number  of  locations,  lode'*  or  placer."* 
Nor  is  there  any  inhibition  against  the  consolidation  by 
conveyance  of  any  number  of  claims  which  may  have 
been  located  in  good  faith  by  either  individuals  or 
associations,  particularly  after  all  the  acts  of  location 
have  been  completed,  to  a  single  individual  or  a  corpo- 
ration. What  the  law  prohibits  is  the  scheme  or  de- 
vice entered  into  by  which  an  individual  or  a  corpora- 
tion is  to  acquire  directly  or  indirectly  for  his  or  its 
own  individual  benefit  more  than  the  amount  or  pro- 
portion in  area  which  he  or  it  might  lawfully  acquire 
under  the  law.'® 

The  discovery  of  oil  in  Central  California  furnished 
an  inviting  field  for  the  multiplication  of  association 
claims,  most  of  them  made  without  previous  discovery 
and  many  of  them  undoubtedly  through  the  use  of 
"dummies."  They  were  subsequently,  however,  con- 
veyed to  purchasers  in  good  faith  for  value  and  with- 

T4  Ante,  §  361. 

T5  Eiverside  Sand  &  Cement  Co.  t.  Hardwick,  16  N.  M.  479,  120  Pac. 
323,  324. 

76  Nome  &  Sinook  Mining  Company  v.  Snyder,  187  Fed.  385,  388, 
109  C.  C.  A.  217,  1  W^ater  &  Min.  Cas.  202;  Cook  v.  Klonos,  164  Fed. 
529,  537,  90  C.  C.  A.  403 ;  United  States  v.  Trinidad  Coal  Company,  137 
U.  S.  160,  169,  11  Sup.  Ct.  Rep.  57,  34  L.  ed.  640. 


1065  NUMBER  OF  LOCATIONS  BY  AN   INDIVIDUAL.  §  450 

out  notice,  who  developed  the  ground  at  large  expense 
and  made  the  requisite  discoveries.  In  the  patent  pro- 
ceedings in  such  cases,  the  land  department  has  not 
undertaken  to  criticise  the  locations  when  they  are  thus 
obviously  held  by  bona  fide  grantees  in  possession  and 
working.  The  department  decided,  however,  that 
when  such  conveyance  was  made  prior  to  discovery, 
the  individual  or  corporate  grantee  in  making  discov- 
ery was  limited  to  a  single  twenty-acre  tract.  We 
have  heretofore  observed  that  congress  intervened  and 
overruled  the  departmental  decisions  by  legislative 
enactment."  This  action  of  congress  was  undoubtedly 
in  a  large  degree  induced  through  the  recognition  of 
the  equities  in  favor  of  the  ultimate  grantee  who  de- 
veloped the  ground.  The  location  notice  contains  no 
evidence  of  fraud,  and  the  legal  presumption  would  be 
in  favor  of  its  validity. 

In  the  second  edition  of  this  treatise,  the  author 
stated  the  rule  to  be  that  the  alleged  fraudulent  char- 
acter of  this  class  of  locations  was  a  question  which  the 
government  alone  could  inquire  into,  and  the  supreme 
court  of  New  Mexico  accepted  this  as  a  correct  state- 
ment of  the  law.''* 

The  question  can  undoubtedly  be  raised  in  the  patent 
proceeding'"  and  in  an  adverse  suit  arising  out  of  such 
proceeding,*"  as  this  action  is  in  aid  of  the  patent  pro- 
ceeding and  the  question,  like  that  of  citizenship,  is 
one  in  which  the  government  is  interested.  The  court 
action  is  in  the  nature  of  "inquest  of  office."" 

77  Arite,  §  438b. 

78  Riverside  Sand  &  Cement, Mfg.  Co.  v.  Hardwick,  16  N.  M.  479,  120 
Pac.  323,  325. 

79  Coalinga  Hub  Oil  Co.,  40  L.  D.  401. 

80  Durant  v.  Corbin,  94  Fed.  382,  383,  20  Morr.  Min.  R«p,  84;  Gird 
T.  California  Oil  Co.,  60  Fed.  531,  545. 

81  Ante,  §§  233,  234, 


§  450  THE   SURFACE  COVERED  BY   THE  LOCATION.  1066 

But  tlie  circuit  court  of  appeals  of  the  nintli  circuit 
decided  that  the  question  can  be  litigated  in  a  contro- 
versy between  individuals  in  an  action  in  equity  to 
quiet  title.  In  Cook  v.  Klonos^^  the  court  held  that 
as  the  case  was  not  one  involving  the  right  of  an  indi- 
vidual to  purchase  and  hold  a  number  of  claims,  but 
was  a  fraudulent  attempt  of  an  individual  to  acquire 
indirectly  by  location  more  placer  ground  than  the  law 
sanctioned,  the  location  was  void.  All  the  locators  had 
knowledge  of  the  transaction,  and  the  parties  did  not 
come  into  court  ''with  clean  hands." 

On  rehearing  the  court  modified  its  opinion,  having, 
after  re-examination  of  the  case,  reached  the  conclusion 
that  two  of  the  locators  were  not  parties  to  the  fraud, 
and  permitted  these  two  to  select  twenty  acres  each 
out  of  the  association  claim  of  one  hundred  and  sixty 
acres.*^ 

In  the  case  of  Nome  &  Sinook  Co.  v.  Snyder®*  an  ad- 
verse suit  arising  out  of  the  patent  proceeding,  the 
court  followed  the  rule  announced  in  the  Cook-Klonos 
case,  and  held  the  location  there  involved  was  void  and 
that  the  ground  remained  vacant  mineral  land  subject 
to  location  by  others. 

Where  an  association  of  persons  locating  mining 
claims  formed  a  corporation  to  which  the  title  was 
transferred,  the  locators  receiving  stock  in  the  pro- 
portion of  respective  interest  in  the  location,  the  loca- 
tion was  valid.     None  of  the  locators  were  dummies.**^ 

We  think  a  review  of  these  cases  authorizes  the  fol- 
lowing deductions : — 

82  164  Fed.  529,  539,  90  C.  C.  A.  403. 

83  Cook  V.  Klonos,  168  Fed.  700,  701,  94  C.  C.  A.  144.  See,  also, 
Eooney    v.    Barnette,    200    Fed.    700,    705,    where    this    principle   was 

recognized. 

84  187  Fed.  385,  388,  109  C.  C.  A.  217,  1  Water  &  Min.  Cas.  202. 
84a  Borgwardt  v.  McKittrick  Oil  Co.  (Cal.),  130  Pae.  417,  419. 


1067  NUMBER  OF  LOCATIONS  BY  AN   INDIVIDUAL.  §  450 

1.  In  the  patent  proceeding,  in  adverse  suits  arising 
out  of  it  and  in  actions  which  may  be  brought  directly 
by  the  government,  the  question  of  the  fraudulent  char- 
acter of  the  locations  may  be  investigated  and  deter- 
mined. 

2.  In  controversies  between  private  individuals  in 
suits  other  than  adverses  arising  out  of  the  patent  pro- 
ceeding, the  question  may  be  investigated  and  deter- 
mined where  the  original  parties  to  the  fraud  or  per- 
sons having  notice  are  before  the  court. 

3.  The  question  is  not  an  issuable  one  in  ordinary 
actions  between  individuals  where  the  claimant,  de- 
raigning  title  from  the  alleged  fraudulent  locators,  is  a 
bona  fide  grantee  for  value  and  without  notice. 

As  heretofore  noted^^  congress  on  August  1,  1912, 
passed  an  act  entitled  ''An  act  to  modify  and  amend 
the  mining  laws  in  their  application  to  the  territory  of 
Alaska  and  for  other  puri^oses, "  ^^^  which  act,  among 
other  things,  limited  an  association  placer  to  forty 
acres,  and  made  the  following  provisions  limiting  the 
number  of  claims  which  an  individual  or  association 
might  locate: — 

That  no  person  shall  hereafter  locate  any  placer 
mining  claim  in  Alaska  as  attorney  for  another  un- 
less he  is  duly  authorized  thereto  by  power  of  attor- 
ney in  writing 

Any  person  so  authorized  may  locate  placer  min- 
ing claims  for  not  more  than  two  individuals  or  one 
association  under  such  power  of  attorney  but  no  such 
agent  or  attorney  shall  be  authorized  or  pennitted 
to  locate  more  than  two  placer  mining  claims  for  any 
one  principal  or  association  during  any  calendar 
month  and  no  placer  mining  claim  shall  hereafter  be 
located  in  Alaska  except  under  the  limitations  of  this 

«5  A7hte,  §  448. 

85a  37  Stats,  at  Large,  242. 


§  450      THE  SURFACE  COVERED  BY  THE  LOCATION.      1068 

act.  No  person  shall  hereafter  locate  or  procure  to 
be  located  for  himself  more  than  two  placer  mining 
claims  in  any  calendar  month:  Provided  that  one  or 
both  snch  locations  may  be  included  in  an  association 
claim.  Any  placer  claim  attempted  to  be  located  in 
violation  of  the  act  shall  be  null  and  void  and  the 
whole  area  thereof  may  be  located  by  any  qualified 
locator  as  if  no  such  prior  attempt  had  been  made. 

The  act  has  no  retroactive  effect.  It  is  prospective 
only  in  its  operation.®^" 

During  the  period  when  rights  were  governed  exclu- 
sively by  local  rules,  in  certain  districts  the  number  of 
claims  which  one  might  locate  and  hold  at  one  time 
within  that  particular  district  were  defined.  But  with 
the  exception  of  the  Alaska  statute  above  referred  to, 
the  law  governing  the  location  of  salines  *°  and  the  laws 
applicable  to  the  Philippine  Islands,*^  there  is  no  trace 
of  this  found  in  the  legislation  of  congress. 

The  amended  rules  and  regulations  adopted  by  the 
miners  at  Cape  Nome  in  June,  1901,  provided  that — 

Not  more  than  one  placer  claim  can  be  located  in 
said  district  in  the  name  of  the  same  person  on  the 
same  stream,  creek  or  gulch. 

Many  of  the  districts  of  Alaska  had  similar  rules. 
The  validity  of  these  limitations  has  been  doubted,  but 
not  judicially  determined.^* 

85b  For  instructions  interpreting  this  act,  see  41  L.  D.  347.  Also  see 
Appendix. 

86  Post,  §  514a, 

8T  Ante,  §  361,  note, 

88  The  state  of  Oregon  has  a  law  limiting  the  discoverer  of  a  vein  to 
two  claims;  all  others  to  one  claim  on  the  same  vein.  Annot.  Laws  of 
Oregon  (1892),  §  3829;  Ballinger's  Code,  §  3974;  Lord's  Or.  Laws,  §  5127. 


1069 


MARKING  PLACER   CLAIM   BOUNDARIES. 


§454 


Aeticle  VI.    The  Marking  of  the  Location  on 
THE  Ground. 


§  454.  Rule  as  to  marking  bound- 
aries of  placer  claims 
in  absence  of  state  legis- 
lation. 

§  455.     State     legislation     as     to 


marking    boundaries    of 

placer  claims. 
§  456.     Same — First  group. 
§  457.     Same — Second  group. 
§  458.     Same — Third  group. 


§  454.  Rule  as  to  marking  boundaries  of  placer 
claims  in  absence  of  state  legislation. — We  liave  ex- 
plained in  a  previous  section  the  necessity  for,  and 
object  of,  marking  lode  locations  upon  the  ground." 

As  will  appear  in  the  next  section,  most  of  the  states 
have  enacted  statutes  providing  for  marking  placer 
locations  on  the  ground,  whether  on  surveyed  or  unsur- 
veyed  lands.  Some  of  them  provide  that  where  the 
location  is  on  surveyed  lands  and  conforms  to  the  sub- 
division of  the  public  surveys,  no  further  marking  is 
necessary.  We  are  presently  dealing  with  the  neces- 
sity for  marking  this  class  of  locations  on  the  ground 
in  the  absence  of  any  state  legislation  supplementing 
the  federal  laws.  The  Revised  Statutes  of  the  United 
States ^°  provide  that  ''the  location  must  be  distinctly 
marked  upon  the  ground,  so  that  its  boundaries  can 
be  readily  traced."  As  to  lode  claims,  this  is  held  to 
be  mandatory,  and  after  the  discovery  the  most  im- 
portant act  in  the  series  necessary  to  perfect  a  valid 
location.^^ 

The  necessity  for  marking  placer  claims  on  the 
ground,  located  on  surveyed  lands,  which  claims  are 
irregular  in  shape  and  not  conforming  to  the  subdivi- 

80  Ante,   §   371. 

»o  §  2324;  17  Stats,  at  Large,  92;  Comp,  Stats.  1901,  p.  1426;  5  Fed. 
Stats.  Ann.  19. 
91  Ante,  §  361. 


§  454  MARKING  OF  THE  LOCATION  ON  THE  GROUND.  1070 

sions  of  tlie  public  surveys,  and  a  like  necessity  for 
marking  all  placer  claims  on  unsurveyed  lands,  is  con- 
ceded by  practically  all  the  courts.  The  difference  of 
opinion  existing  between  the  courts,  to  be  hereafter 
analyzed,  arises  out  of  the  inquiry  whether  in  locating 
a  placer  mining  claim  by  legal  subdivisions  on  sur- 
veyed lands  it  is  necessary  to  mark  the  location  on  the 
ground  so  that  the  boundaries  can  be  readily  traced,  or 
is  the  description  in  the  posted  and  recorded  notice  of 
the  subdivisions  located  a  sufficient  "marking"  within 
the  meaning  of  the  federal  law. 

Even  if  the  language  of  the  Revised  Statutes  above 
quoted  was  by  reason  of  its  place  in  the  context  appli- 
cable only  to  lode  claims,  a  subsequent  section  places 
placers  in  the  same  category. 

Claims  usually  called  '^ placers"  ....  shall  be 
subject  to  entry  and  patent,  under  like  circumstances 
and  conditions  and  upon  similar  proceedings  as  are 
provided  for  vein  or  lode  claims,  but  when  the  lands 
have  been  previously  sur\^eyed  by  the  United  States, 
the  entrj^  in  its  exterior  limits  shall  conform  to  the 
legal  subdivisions  of  the  public  lands.®'' 

As  was  said  by  the  supreme  court  of  the  United 
States: — 

The  purpose  of  this  section  is  apparently  to  place 
the  location  of  placer  claims  on  an  equality  both  in 
procedure  and  rights  with  lode  claims.^^ 

To  arrive  at  an  understanding  of  the  present  state  of 
the  law  as  interpreted  in  the  different  jurisdictions  it 
is  expedient  to  deal  with  decisions  chronologically. 

92  Eev.  Stats.,  §2329;  16  Stats,  at  Large,  217;  Comp.  Stats.  1901, 
p.  1432;  5  Fed.  Stats.  Ann.  42. 

93  Clipper  M.  &  L.  Co.  v.  Eli  M.  &  L.  Co.,  194  U.  S.  220,  227,  24 
Sup.  Ct.  Kep.  632,  48  L.  ed.  944.     Italics  are  ours. 


1071  MARKING  PI^VCER   CL.VIM   BOUNDARIES.  §  454 

The  supreme  court  of  Colorado  in  the  case  of  Sweet 
V.  Webber  (1884),^*  ruled  that  marking  on  the  ground 
was  just  as  necessary  under  the  federal  law  in  case  of 
placers  as  in  case  of  lodes.  The  location  involved  in 
this  case  was  made  prior  to  the  enactment  of  any  legis- 
lation in  Colorado  on  the  subject.  The  opinion  does 
not  distinctly  state  that  the  location  was  made  by  gov- 
ernment subdivisions  on  surveyed  lands.  But  that  is 
the  inference,  and  an  inspection  of  the  record  discloses 
it  to  be  the  fact."'' 

In  the  California  case  of  White  v.  Lee'®  the  question 
was  squarely  presented,  the  locations  being  coextensive 
with  a  government  subdivision  on  sun^oyed  lands.  De- 
fendant had  previously  located  the  ground  by  posting 
and  recording  the  notice  but  failed  to  mark  the  bound- 
aries. Plaintiff's  grantors  relocated  the  ground, 
marked  oif  the  boundaries,  and  did  all  that  the  law 
required  to  perfect  the  location.  The  case  turned  on 
the  sole  question  of  the  validity  of  the  prior  unmarked 
location.  _The  contention  was  made  in  support  of  its 
validity  that  the  last  clause  of  section  2329  of  the  Re- 
vised Statutes,  "when  lands  have  been  previously 
surveyed  by  the  United  States  the  entry  in  its  exterior 
limits  shall  conform  to  the  legal  subdivisions  of  the 
public  lands,"  dispensed  with  the  necessity  for  mark- 
ing on  the  ground.  As  to  this  contention,  the  supreme 
court  of  California  said: — 

This  [clause  of  the  statute],  however,  simply  pro- 
vides where  the  claimant  shall  run  the  lines  of  his 
claim.     It  does  not  at  all  dispense  with  the  require- 

94  7  Colo.  443,  4  Pac.  752. 

94a  We  are  indebted  to  Messrs.  Morrison  &  De  Soto  for  the  informa- 
tion that  the  locations  involved  in  this  case  were  on  surveyed  lands. 
The  record  was  examined  by  them  for  the  purpose  of  ascertaining  this 
fact. 

85  78  Cal.  593,  596,  12  Am,  St.  Eep.  115,  21  Pac.  363. 


§  454  MARKING  OF  THE  LOCATION  ON  THE  GROUND.  1072 

ment  as  to  how  the  lines  of  the  claims  shall  be  evi- 
denced. Section  2331  [of  the  Revised  Statutes]  pro- 
vides that  ''where  placer  claims  are  upon  surveyed 
lands  and  conform  to  legal  subdivisions,  no  further 
survey  or  plat  may  be  required."  This  provision 
does  not  refer  to  the  marking  by  claimant  of  the 
boundaries  of  his  claim  upon  the  ground,  but  to  the 
plat  and  survey  which  are  to  be  filed  upon  applica- 
tion for  the  patent.  Nor  do  we  see  any  provision 
which  dispenses  with  the  general  requirement  that 
the  boundaries  shall  be  marked. 

The  controlling  ratio  decedendi  is,  however,  found 
in  the  following  expressions  in  the  opinion: — 

The  construction  contended  for  does  not  seem  to 
us  to  be  in  harmony  with  the  general  purpose  of 
the  act.  The  purpose  of  the  requirement,  that  the 
claimant  shall  mark  the  boundaries  of  his  claim  is 
to  inform  other  miners  as  to  what  portion  of  the 
ground  is  already  occupied.  The  men  for  whose  in- 
formation the  boundaries  are  required  to  be  marked, 
wander  over  the  mountains  with  a  very  small  outfit. 
They  do  not  take  surveyors  with  them  to  ascertain 
where  the  section  lines  run,  and  ordinarily  it  would 
do  them  no  good  to  be  informed  that  a  quarter- 
section  of  a  particular  number  had  been  taken  up. 
They  would  derive  no  more  information  from  it  than 
they  would  from  a  description  by  metes  and  bounds, 
such  as  would  be  sufficient  in  a  deed.  For  the  infor- 
mation of  these  men,  it  is  required  that  the  bound- 
aries shall  be  "distinctly  marked  upon  the  ground." 
The  section  lines  may  not  have  been  "distinctly" 
marked  upon  the  ground,  or  the  marks  may  have  be- 
come obliterated  by  time  or  accident.  And  to  say, 
that  the  mere  reference  to  the  legal  subdivision  is  of 
itself  sufficient,  would,  in  our  opinion,  defeat  the  pur- 
pose of  the  requirement. 


1073  MARKING  PLACER  CLAIM    BOUNDARIES.  §  454 

Tlie  doctrine  of  "White  v.  Lee  was  followed  in  the 
parallel  case  of  Anthony  v.  Jillson  (1890),''  the  loca- 
tion being  by  government  subdivision  without  any 
marking.  The  court  ruled  that  "the  failure  to  mark 
the  boundaries  is  fatal  to  the  validity  of  the  claim." 
In  the  case  of  Temescal  Oil  Co.  v.  Salcido  (Aug. 
1902),'*'  the  location  was  made  upon  surveyed  lands  and 
the  notice  described  the  tract  by  government  subdivi- 
sions. The  locator  had  the  claim  carefully  surveyed 
by  a  competent  surveyor.  One  of  the  original  monu- 
ments placed  at  the  northwest  comer  of  the  tract  by 
the  government  surveyors  was  found  in  place.  The 
lines  of  the  location  were  run  and  stakes  two  or  three 
inches  in  diameter  and  standing  a  foot  above  the 
ground  were  placed  at  each  comer.  The  court  ruled  as 
follows: — 

We  think  this  inclosure  shows  a  substantial  com- 
pliance with  the  provisions  of  the  United  States  stat- 
utes requiring  that  "the  location  must  be  distinctly 
marked  on  the  ground  so  that  its  boundaries  can  be 
readilj'  traced."  We  are  influenced  somewhat  in  our 
consideration  of  the  point  by  the  fact  that  the  notice 
of  location  which  was  posted  and  recorded  described 
the  claim  by  its  government  subdivision,  the  land 
having  already  been  surv^eyed  by  the  government; 
and  that  a  government  monument  was  still  in  place 
at  the  time  of  the  location.  There  is  nothing  in 
White  V.  Lee,  78  Cal.  593,  12  Am.  St.  Rep.  115,  21 
Pac.  363,  inconsistent  with  this  conclusion,  for  in 
that  case  no  attempt  of  any  kind  had  been  made  to 
monument  the  claim,  but  the  claimant  relied  solely 
on  the  government  survey  as  sufficient  to  mark  the 
boundaries  of  his  claim. 

I       96  83  Cal.  296,  23  Pac.  419,  420,  16  Morr.  Min.  Kep.  26. 
87  137  Cal.  211,  69  Pac.  1010. 
Lindley  on  M. — 63 


§  454  MARKING  OF  THE  LOCATION  ON  THE  GROUND.  1074 

In  this  case  it  is  clearly  conceded  that  some  kind  of 
physical  marking  was  necessary.  If  the  court  erred  at 
all,  it  was  in  determining  that  the  marking  was  suffi- 
cient to  identify  the  claim  taken  in  connection  with 
the  notice.  The  court  followed  without  citing,  how- 
ever, the  ruling  of  the  supreme  court  of  the  United 
States  in  McKinley  Mining  Co.  v.  Alaska  Mining  Co. 
(Jan.  1902),®®  upholding  the  validity  of  a  location  on 
unsurveyed  lands  when  there  was  only  one  monument 
and  that  a  stump,  but  distances  and  width  were  given 
in  the  notice  from  which  the  court  held  the  bound- 
aries of  the  claim  could  be  readily  traced. 

The  case  of  Kern  Oil  Co.  v.  Crawford  (1903) ""  arose 
out  of  the  following  state  of  facts:  A  location  of  one 
hundred  and  sixty  acres  of  placer  ground  on  surveyed 
lands  was  made  by  an  association  of  persons.  It  con- 
formed to,  and  the  location  notices  described,  the  tract 
by  the  government  subdivision.  The  four  corners 
were  marked  by  4x4  stakes  painted  white  and  appro- 
priately scribed.  The  eastern  boundary  was  further 
marked  by  lathes  set  at  intermediate  points  between 
the  two  comer  stakes. 

It  was  subsequently  discovered  that  in  retracing  the 
lines  the  surveyor  made  a  mistake  in  the  position  of 
the  northeast  and  southeast  comers,  so  that  a  small 
sliver  seventy-three  feet  wide  on  the  north  boundary 
and  twenty-four  feet  wide  at  the  south  boundary  was 
not  included  within  the  lines  connecting  the  boundaries 
as  marked  upon  the  ground.     The  facts  are  shown  on 

98  183  U.  S.  563,  570,  22  Sup.  Ct.  Eep.  84,  46  L.  ed.  331. 
89  143  Cal.  298,  76  Pac.  1111,  1113. 


1075 


MARKING  PLACER  CLAIM   BOUNDARIES. 


5  454 


the  following  figure   (41b),  the  etched  portion  indi- 
cating the  excluded  ground.     The  struggle  was  over 


*^   M«tM 


-^ 


rgV* 


Figure  41b. 
this  sliver.  Oil  having  been  found  in  paying  quanti- 
ties in  another  portion  of  the  quarter-section,  the  strip 
between  the  staked  and  true  boundaries  was  sufficient 
upon  which  to  sink  a  well,  and  it  was  relocated  on  the 
theoiy  that  the  first  locators  could  not  claim  anything 
east  of  their  marked  boundaries.  The  court,  in  deter- 
mining this  case,  in  order  to  defeat  the  relocation,  felt 
constrained  to  directly  overrule  the  decision  in  White 
V.  Lee,  to  discredit  Anthony  v.  Jillson,  and  explain 
Temescal  Oil  Co.  v.  Salcido,  and  in  reversing  its  posi- 
tion gave  the  following  reasons: — 

When  a  location  is  made  according  to  legal  subdi- 
visions, no  provision  is  made  for  sur\^eying  it  again, 
for  the  evident  reason  that  it  sold  as  per  the  survey 
that  has  already  been  made  by  the  United  States. 
The  statute  expressly  provides  that  in  such  a  case 
no  further  plat  or  survey  shall  be  required.  The 
purchaser  takes  it  to  the  extent  of  its  exterior  bound- 
aries precisely  as  it  would  be  in  case  of  a  homestead 


§  454  MARKING  OF  THE  LOCATION  ON  THE  GROUND.  1076 

or  pre-emption  claim.  There  is  no  reason  why  the 
locator  should  be  required  to  stake  out  and  mark  its 
boundaries,  nor  does  the  statute  require  it.  They 
have  already  been  staked  and  marked  and  cannot  be 
changed.  Any  person  seeing  the  notice  could  by  em- 
ploying a  surveyor  or  othei^ise  find  the  boundaries 
as  easily  as  could  the  locator  and  it  evidently  is  the 
duty  of  such  person  to  do  so  in  case  he  is  interested 
in  knowing  where  they  are. 

With  a  profound  respect  for  the  court  which  ren- 
dered this  decision,    we    deferentially   insist  that  the 
opinion  ex  viscerihus  suis  discloses  the  no7i  scquitur  of 
its  reasoning  and  the  fallacy  of  its  conclusions.     In 
the  absence  of  any  state  legislation,  or  local  rule,  no 
notice  need  be  either  posted "°  or  recorded.'     The  fed- 
eral laws  are  to  be  construed  in  the  light  of  this  con- 
tingency.    This  case  fortuitously  involved  a  location 
of  a  full  quarter-section,  three  comers  of  which  were 
supposed  to  have  been  originally  marked  by  quarter- 
section  comer  posts  by  the  government  surveyor.    Sup- 
pose, however,  the  location  had  been  so  situated  as  not 
to  reach  any  of  the  exterior  boundaries  of  the  section 
or  any  of  the   originally   marked    corners.     Lines  of 
these  minor  subdivisions  are  not  surveyed  in  the  field, 
but  are  protracted  in  the  surveyor-general's  office  and 
the  lines  are  wholly  imaginary.^    Where  such  a  minor 
subdivision  is  located  and  not  marked,  what  evidence 
is  there  on  the  ground  or  elsewhere  of  any  appropria- 
tion which  will  warn  off  subsequent  intending  locators 
if  there  are  no  marks  to  indicate  it? 

It  is  possible  that  in  the  case  of  normal  quarter-sec- 
tions, monuments  originally  placed  by  the  government 
are,  or  some  of  these  are,  extant,  making  a  retracing  of 

100  Ante,  §  350. 
1  Ante,  §  273. 
3  Ante,  §  106. 


1077  MARKING  PLACER  CLAIM  BOUNDARIES.  §  454 

the  boundaries  a  comparatively  easy  matter.  But  ex- 
perience shows  that  this  maridng  is  frequently  oblit- 
erated, and  it  is  rarely  that  any  of  the  exterior  stakes 
of  a  quarter  section  are  found  in  place.  One  of  the 
most  difficult  tasks  the  surveyor  has  is  in  retracing  old 
government  surveys.  Many  times  the  nearest  recog- 
nized extant  monument  or  government  comer  is  miles 
distant.  The  length  of  tie  lines  in  patent  surveys  of 
lode  claims  affords  abundant  proof  of  this. 

In  the  case  now  being  considered,  the  surveyor  in 
retracing  the  lines  of  a  single  quarter-section  missed 
the  correct  position  of  two  of  the  corners. 

How  could  a  later  prospector,  unskilled  in  the  science 
of  surveying,  be  expected  to  find  them?  Furthermore, 
in  order  to  determine  the  invalidity  of  the  relocation  of 
the  sliver  on  the  east  boundary,  it  was  entirely  unneces- 
sary to  overrule  the  doctrine  of  the  previous  cases. 
The  placing  of  three  corner  monuments,  which  were 
concededjLo  be  ifr  their  proper  position,  was  in  connec- 
tion tvith  the  notice  sufficient  to  support  the  validity  of 
the  original  location,  and  disclose  the  apparent  inno- 
cent mistake  made  by  the  locator  in  marking  the  east 
boundary.  Ample  justification  for  such  a  ruling  could 
have  been  found  in  Temescal  Oil  Co.  v.  Salcido  and 
McKinley  Min.  Co.  v.  Alaska  Min.  Co.,  supra,  without 
disturbing  the  rule  announced  in  White  v.  Lee. 

The  supreme  court  of  Colorado  makes  the  following 
comment  on  the  decision  in  Kern  Oil  Co.  v.  Crawford, 
after  quoting  approvingly  the  excerpt  from  White  v. 
Lee,  supra: — 

It  is  proper  to  state  that  the  decision  in  the  case 
of  White  V.  Lee,  supra,  was  expressly  overruled  in 
the  case  of  Kern  Oil  Co.  v.  Crawford,  supra,  but  a 
careful  examination  of  the  opinion  in  the  latter  case 
shows  conclusively  that  the  question  determined  in 


§  454  MARKING  OP  THE  LOCATION  ON  THE  GROUND.  1078 

the  former  case  was  not  before  the  court  in  the  lat- 
ter one.  The  ruling  on  that  point  was  a  gratuity  and 
unnecessary  to  a  determination  of  the  matters  then 
before  the  court.  In  any  event  the  reasons  given  in 
White  V.  Lee  for  requiring  staking  under  the_ federal 
statute  are  logical  and  persuasive  and  their  force 
remains  unimpaired.^ 

"While  the  expressions  of  the  supreme  court  of  Colo- 
rado coincide  with  the  author's  views,  candor  compels 
us  to  admit  that  the  question  was  not  involved  in  the 
case  under  consideration  and  that  the  language  used 
was  possibly  as  gratuitous  and  unnecessary  as  was  that 
employed  in  the  Kern  Oil  Co.  v.  Crawford  case.  The 
court  itself  says  that  they  were  not  called  upon  to  de- 
cide the  question  here  discussed. 

The  supreme  court  of  Arkansas,  in  Worthen  v.  Sid- 
way  (1904),"  approves  and  follows  the  rule  in  White  v. 
Lee.  It  does  not  refer  to  the  decision  in  Kern  Oil  Co. 
V.  Crawford,  probably  for  the  reason  that  it  had  not 
then  been  published.  However,  later  cases  in  Arkan- 
sas follow  Worthen  v.  Sidway  without  referring  in  any 
way  to  Kern  Oil  Co.  v.  Crawford.^  The  supreme  court 
of  Montana,  in  Freezer  v.  Sweeney  (1889),^  stated  that 
there  was  no  requirement  of  the  federal  law  that  placer 
locations  should  be  staked  or  marked  on  the  ground, 
and  that  the  provision  as  to  marking  applied  only  to 
lode  claims.  This  is  obviously  an  error.  The  state- 
ment in  any  event  is  too  sweeping.  The  court  at  that 
time,  however,  would  undoubtedly  have  held  that  loca- 
tions on  surveyed  lands  conforming  to  government  sub- 
divisions need  not  be  marked.     The  question,  however, 

3  Saxton  V.  Perry  (1910),  47  Colo.  263,  107  Pac.  281,  285. 

4  72  Ark.  215,  79  S.  W.  777,  780. 

B  Malececk  v.   Tinsley    (1905),   73   Ark.   610,   85   S.   W.   81;    Ware  v. 
White  (1907),  81  Ark.  220,  108  S.  W.  831,  832. 
6  8  Mont.  508,  21  Pac.  20,  21, 


1079  MARKING  PLACER  CLAIM   BOUNDARIES.  §  454 

was  not  involved  and  the  expression  employed  argu- 
endo is  mere  dictum. 

The  case  of  McDonald  v.  Montana  Wood  Co.  (1894)/ 
decided  by  the  supreme  court  of  Montana,  has  been  at 
times  cited  as  supporting  the  doctrine  of  Kern  Oil  Co. 
V.  Crawford.  But  an  examination  of  the  opinion  in 
that  case  shows  that  the  question  here  discussed  was 
not  involved.  An  association  claim  of  one  hundred 
and  sixty  acres  had  been  made  and  the  location  had 
been  distinctly  marked  on  the  ground.  The  contention 
was  made  that  each  of  the  component  twenty-acre 
units  should  have  been  separately  marked.  The  con- 
tention was  overruled.  It  may  be  here  appropriately 
noted  that  Montana  now  has,  and  for  years  has  had,  a 
statute  which  requires  the  marking  of  all  placer 
claims.  This  statute  will  be  referred  to  in  the  next 
section. 

The  land  department  follows,  without  citing  any 
authorities,  the  later  California  rule  announced  in  Kern 
Oil  Co.^Vj-Crawfojrd.,  supra.  The  secretary  of  the  in- 
terior says: — 

It  does  not,  in  my  judgment,  mean  that  when  the 
placer  is  located  on  surveyed  lands  it  is  necessary 
to  mark  the  boundaries.  There  is  no  purpose  that 
can  be  subserved  by  so  doing.  The  public  surveys 
are  as  permanent  and  fixed  as  anything  can  be  in 
that  line,  and  any  fractional  part  of  a  section  can  be 
readily  found,  and  its  boundaries  ascertained,  by 
that  method,  for  all  time  to  come,  and  is  necessarily 
more  stable  and  enduring  than  marking  it  by  per- 
ishable or  destructible  stakes  or  monuments.* 

Mr.  Morrison  states  that  the  question  has  been  the 
subject  of  curious  judicial  rulings  and  advises  staking 

7  14  Mont,  88,  43  Am.  St.  Rep.  616,  35  Pac.  668. 

8  Reins  v.  Murray  (1896),  22  L,  D.  409,  See  par.  30,  Regulations, 
March  29,  1909,  Appendix. 


§  455  MARKING  OF  THE  LOCATION  ON  THE  GROUND.  1080 

de  novo  as  the  only  safe  course.'  Mr.  Costigan,  refer- 
ring to  the  decision  in  Kern  Oil  Co.  v.  Crawford, 
says : — 

But  it  cannot  be  that  the  supreme  court  of  the 
United  States  will  adhere  to  a  rule  so  inconsistent 
with  the  object  of  notice  to  prospectors  which  is  a 
basic  principle  of  the  mining  law." 

•  It  will  be  borne  in  mind  that  the  question  is,  so  far 
as  the  supreme  court  of  the  United  States  is  concerned, 
res  Integra.  When  that  tribunal  is  called  upon  to  de- 
cide it,  we  are  of  the  opinion  that  when  it  analyzes  the 
different  conflicting  decisions  and  by  a  process  of  com- 
mon factoring  eliminates  the  speculative  opinions,  dicta, 
and  gratuitous  and  unnecessary  recitals  arguendo ,  and 
separates  the  cases  in  which  there  was  some  degree  of 
marking  and  the  question  was  simply  the  sufiSciency 
of  such  marking,  from  those  where  there  was  no  mark- 
ing on  the  ground  whatever,  it  will  rest  its  final  judg- 
ment on  the  ratio  decedendi  of  the  case  of  White  v.  Lee, 
the  first  and,  in  our  judgment,  the  best  expression  of 
opinion  by  the  supreme  court  of  California  on  the  sub- 
ject. The  question  is  not  and  in  its  nature  cannot  be 
one  of  expediency,  nor  is  it  one  which  justifies  the 
application  of  the  equitable  rule  of  "balancing  incon- 
veniences." 

We  have  discussed  this  question  at  length  for  the 
reason  that  its  proper  solution  involves  the  validity  of 
certain  state  legislation  on  the  subject  which  is  to  be 
discussed  in  the  following  section. 

§  455.  State  legislation  as  to  marking  boundaries 
of  placer  claims. — There  is  no  legislation  on  the  sub- 
ject of  marking  placer  locations  in  Arkansas,  Oregon, 
North  Dakota,  or  South  Dakota.     These  states  with 

9  Morrison's  Mining  Rights,  13th  ed.,  p.  218;  14th  ed.,  p.  251. 

10  Costigan  on  Mining  Law,  pp.  255,  256. 


1081  STATE  LEGISLATION.  §  456 

the  territon'  of  Alaska  arc,  in  this  behalf,  governed  en- 
tirely by  the  federal  law,  which,  as  we  have  heretofore 
observ^ed,  requires  a  marking  on  the  ground  so  that  the 
boundaries  may  be  readily  traced.  The  extent  of  such 
marking  is  a  question  to  be  determined  in  each  case, 
with  due  regard  to  circumstances  and  environment. 
The  rule  adopted  by  the  supreme  court  in  McKinley 
Creek  Min.  Co.  v.  Alaska  Min,  Co.,'^  where  one  fixed 
monument  with  a  posted  notice  giving  directions,  dis- 
tance and  dimensions,  was  held  a  sufficient  marking, 
furnishes  a  guide  which  is  barely  within  the  limits  of 
safety. 

The  remaining  states  divide  themselves  into  three 
groups.  First:  Those  wherein  the  laws  distinctly  and 
in  terms  provide  that  there  shall  be  a  marking  on  the 
ground  whether  the  location  is  on  surveyed  or  unsur- 
veyed  lands.  Second:  Those  which  provide  generally 
for  the  manner  of  marking  the  locations,  without  ex- 
pressly making  any  distinction  between  claims 
located  ^n  surveyed  and  those  on  unsurveyed  lands. 
Third:  The  states  which  expressly  provide  that  where 
the  location  is  upon  surveyed  lands  and  is  located  by 
government  subdivisions  either  no  marking  or  staking 
is  required,  or  provision  is  made  for  monumenting  only 
at  one  point.  These  groups  may  be  separately  con- 
sidered. 

§  456.  Same — First  group. — Two  states  fall  within 
this  group, — New  Mexico  and  "Washington. 

In  New  Mexico  it  is  required  that  at  the  time  of 
making  the  location,  a  notice  must  be  placed  at  a  des- 
ignated comer  stating  the  name  of  the  claim,  the  pur- 
pose and  kind  of  material  for  which  such  claim  is 
located,  and  if  located  on  surveyed  lands,  the  notice 

11  183  U.  S.  563,  570,  £2  Sup.  Ct.  Kep.  84,  46  L.  ed.  331. 


§  457  MAEKING  OF  THE  LOCATION  ON  THE  GROUND.  1082 

shall  contain  a  description  of  such  claim  hy  metes  and 
bounds  with  reference  to  some  known  object  or  monu- 
ment. And  whether  upon  surveyed  or  unsurveyed 
lands,  each  corner  of  such  claim  shall  be  marked  by 
a  wooden  post  at  least  four  feet  high,  securely  set  in 
the  ground,  or  by  a  substantial  stone  monument.^^ 

Washington  has  a  statute  similar  to  that  of  New 
Mexico,  although  the  manner  of  marking  is  not  speci- 
fied. Where  the  claim  is  upon  surveyed  lands,  it  must, 
notwithstanding  that  fact,  be  marked  upon  the  ground 
the  same  as  other  locations.  The  marking  must  be 
done  within  thirty  days  after  the  date  of  the  discov- 
ery." 

The  laws  of  these  two  states  are  in  full  harmony 
with  the  spirit  and  intent  of  the  federal  law.  There 
can  be  no  question  about  their  validity.'*  A  substan- 
tial compliance  therewith  is  necessary  to  the  perfec- 
tion of  a  placer  location.'^ 

§  457.  Same  — Second  Group. — Five  states  fall 
within  this  group, — Colorado,  Arizona,  Idaho,  Mon- 
tana, Utah,  and  Wyoming.  No  distinction  is  expressly 
made  between  locations  on  surveyed  and  those  on  un- 
surveyed lands.  All  locations  are  required  to  be 
marked  on  the  ground. 

Colorado  requires  the  boundaries  to  be  marked  prior 
to  recording  the  certificate  of  locatio^  (thirty  days 
from  discovery)  by  placing  a  substantial  post  at  each 
angle  of  the  claim.'^ 

12  Laws  1909,  p.  190. 

13  Laws  1901,  p.  292;  Bal.  Supp.  1901-3,  §  3151a;  Eem.  &  Bal. 
Codes  1909,  §  7367. 

14  See  Saxton  v.  Perry,  47  Colo.  263,  107  Pac.  281,  283. 

15  Ante,  §  250  (8). 

16  Mills'  Annot.  Stats.,  §  3136;  Eev.  Stats.  1908,  §4205. 


1083  STATE  LEGISLATION.  §  457 

Arizona  requires  the  marking  of  boundaries  by  a 
post  or  monument  of  stones  at  each  angle  of  the  claim 
located.  When  a  post  is  used,  it  must  be  at  least  four 
inches  square  by  four  feet  six  inches  in  length,  set  one 
foot  in  the  ground,  and  surrounded  by  a  mound  of  stone 
or  earth.  If,  on  account  of  a  bed  of  rock  or  precipi- 
tous ground,  it  is  impracticable  to  sink  such  posts,  they 
may  be  placed  in  piles  of  stones.  When  a  mound  of 
stones  is  used,  it  must  be  at  least  three  feet  in  height 
and  four  feet  in  diameter  at  the  base.  If  for  any  rea- 
son it  is  impossible  to  erect  and  maintain  either  a  post 
or  monument  of  stone  at  any  angle  of  the  claim,  a  wit- 
ness post  or  monument  may  be  used,  and  must  be 
placed  as  near  the  true  corner  as  the  nature  of  the 
ground  will  permit. ^^ 

Idaho,'®  Montana,'^  and  Utah^°  require  the  same 
marking  as  in  case  of  lode  claims. 

Wyoming  requires  surface  boundaries  to  be  desig- 
nated before  recording  the  certificate  of  location 
(ninety  days  from  discovery)  by  substantial  posts  or 
stone  monuments  at  each  corner  of  the  claim.-' 

This  class  of  statutes  is  subject  to  no  criticism.  It 
has  been  contended  that  under  the  federal  law,  where 
a  location  of  placer  ground  has  been  made  upon  sur- 
veyed lands  conforming  to  legal  subdivisions,  no  mark- 
ing was  necessary,  and  that  state  legislation  which 
required  marking  in  a  particular  manner  was  repug- 

17  Rev.  Stats.  1901,  §§  3242,  3243. 

18  Laws    1895,    p.    25,    §    12,    as    amended— Laws    1897,    p.    12;    Civ. 
Code  1901,  §  2563;  Rev.  Code  1907,  §  3522;  Lode  Claims,  ante,  §374. 

19  Rev.   Code   1895,   §   3611;   Rev.   Code    1907,   §    2283;   Lode   Claims, 
ante,  §  374. 

20  Laws   1899,  p.   26,   §   3;   Comp.  Laws   1907,   §   1497;   Lode  Claims, 
cnte,  §  374. 

21  Laws  1888,  pp.  88,  90,  §  22;  Rev.  Stats.  1899,  §  2553,  as  amended 
—Laws  1901,  p.  104;  Comp.  Stats.  1910,  §  3474. 


§  458  MARKING  OF  THE  LOCATION  ON  THE  GROUND.  1084 

nant  to  the  federal  law,  and,  therefore,  void.  The  con- 
tention, however,  was  overruled,  and  legislation  of  this 
character  held  valid  and  mandatory." 

§  458.  Same — Third  group. — Nevada  and  Cali- 
fornia are  in  this  group.  The  laws  of  Nevada  provide 
as  to  the  manner  of  locating  placer  claims  as  follows: 
The  location  must  be  made 

by  posting  thereon  upon  a  tree,  rock  in  place,  stone, 
post  or  monument  a  notice  of  location  containing  the 
name  of  the  claim,  name  of  the  locator  or  locators, 
date  of  location,  and  number  of  feet  or  acres  claimed 
and  by  marking  the  boundaries  and  the  location 
point  in  the  same  manner  and  by  the  same  means  as- 
required  by  the  laws  of  this  state  for  the  marking  of 
the  boundaries  of  lode  claim  locations;  provided, 
that  when  the  United  States  survey  has  been  ex- 
tended over  the  land  embraced  in  the  location  the 
claim  may  be  taken  by  legal  subdivisions  and  except 
the  marking  of  the  location  point  as  hereinbefore 
prescribed  no  other  markings  than  those  of  said  sur- 
vey shall  be  required.^^ 

This  statute  is  somewhat  ambiguous.  Obviously, 
the  location  point  which  is  to  be  marked  is  not  required 
to  be  at  a  comer  of  the  claim.  It  may  be  anj^where 
within  the  location.  There  is  no  initial  point  from 
which  a  subsequent  locator  may  retrace  the  lines  of  the 
original  survey.  The  burden  is  upon  him  to  discover 
the  boundaries  of  the  located  tract  without  any  start- 
ing point.  The  description  of  the  government  subdi- 
vision furnishes  no  evidence  of  its  position  on  the 
ground.  The  statute  possibly  contemplated  that  the 
boundaries  had  been    actually    surveyed    and    monu- 

22  Saxton  V.  Perry,  47  Colo.  263,  107  Pac.  281,  283. 

23  As  amended,  Stats.  1899,  p.  94;  Comp.  Laws  1900,  §  220;  Rev. 
Laws  1912,  §  2434. 


1085  STATE  LEGISLATION.  §  458 

mented  and  that  the  markings  were  still  on  the  ground, 
in  which  event  the  purpose  of  the  law  might  be  satis- 
fied, as  the  second  locator  could  find  the  monuments 
and  together  with  the  notice  ascertain  the  situs  of  what 
was  located.  California  has  a  statute  somewhat  simi- 
lar, it  provides  that — 

Where  the  United  States  survey  has  been  extended 
over  the  land  embraced  in  the  location,  the  claim 
may  be  taken  by  legal  subdivisions  and  no  other 
reference  than  those  of  said  surv^ey  shall  be  required, 
and  the  boundaries  of  a  claim  so  located  and  de- 
scribed need  not  be  staked  or  monumented.  The 
description  by  legal  subdivisions  shall  be  deemed 
the  equivalent  of  marking.^* 

This  act  was  undoubtedly  based  upon  the  ruling  of 
the  supreme  court  of  California  in  the  case  of  Kern  Oil 
Co.  V.  Crawford,  discussed  in  a  previous  section."' 

If  the  federal  laws  require  this  class  of  locations  to 
be  marked  on  the  ground  so  that  the  boundaries  can  be 
readily  traced,  no  state  has  the  power  to  dispense  with 
this  requirement,  or  in  terms  or  inferentially  to  provide 
that  a  mere  reference  in  a  notice  to  a  government  sub- 
division shall  be  the  equivalent  of  a  physical  marking. 

From  the  extended  discussion  and  authorities  cited 
in  section  454  of  this  treatise,  we  incline  to  the  opinion 
that  both  of  these  statutes  contravene  the  letter  and 
spirit  of  the  federal  law,  and  are  void.  In  any  event, 
a  locator  availing  himself  of  the  privilege  of  locating 
without  marking  runs  a  serious  risk  of  jeopardizing 

24  Civ.  Code,  §  1426c. 

24a  The  author  confesses  that  he  was  particeps  criminis  in  the  passage 
of  this  law.  It  was  submitted  to  and  recommended  by  him,  as  it  was 
in  line  with  the  latest  expression  by  the  supreme  court  of  the  state. 
No  consideration,  however,  was  at  that  time  given  to  the  question  here 
discussed,  nor  were  the  cases  analyzed  until  this  portion  of  the  treatise 
was  rewritten  for  the  third  edition. 


§  459  THE  LOCATION  CERTIFICATE  AND  ITS  RECORD.  1086 

what  may  prove  to  be  valuable  property.  The  better 
and  safer  course  to  pursue  is  to  at  least  set  monuments 
and  stakes  at  each  corner  of  the  claim. 

Aeticle  VII.    The  Location  Certificate  and  Its 

Record. 

§  459.  State  legislation  concerning  location  certificates  and  their  record. 
§  460.     Amendment  of  placer  locations. 

§  459.  State  legislation  concerning  location  certifi- 
cates and  their  record. — As  in  the  case  of  lodes,  certifi- 
cates of  location'^  and  iheir  record'®  are  the  subject  of 
state  or  local  regulation.  Where  such  certificates  are 
required,  and  their  record  is  provided  for,  the  same 
general  rules  apply  as  in  the  case  of  lodes.  Where  a 
record  is  made  necessary,  the  requirements  of  the  fed- 
eral law  as  to  contents  of  such  record  are  mandatory." 
There  are  no  specific  provisions  on  the  subject  in  either 
Utah,  South  Dakota,  North  Dakota  or  Oregon.  It  is 
possible  that  in  North  Dakota  and  South  Dakota  the 
laws  governing  lode  claims  may  be  construed  to  cover 
placers,  but  it  is  extremely  doubtful  if  such  is  the  case. 
Other  states  make  special  provision  for  this  class  of 
cases. 

Arizona. — Within  sixty  days  after  the  date  of  loca- 
tion, the  locator  must  record  a  copy  of  the  location  no- 
tice as  posted.'* 

California.— Wiihm  thirty  days  after  the  posting  of 
the  notice  of  location  of  a  placer  claim,  a  true  copy 
thereof  must  be  recorded  in  uhe  office  of  the  county 
recorder  of  the  county  in  which  the  claim  is  situated.'* 

25  Ante,  §  379. 

2«  Ante,  §§  273,  328. 

27  Ante,  §  273. 

28  Rev.  Stats.  1901,  §  3244;  contents  of  location  notice,  ante,  §  442. 

29  Civ.  Code,  §  1426d. 


1087  STATE  LEGISLATION.  §  4:59 

Colorado. — Within  thirty  days  from  the  discovery  a 
certificate  of  location  must  be  recorded  in  the  county 
recorder's  office,  which  must  contain:  (1)  the  name  of 
the  claim,  designating  it  as  a  placer;  (2)  name  of 
locator;  (3)  date  of  location;  (4)  number  of  acres  or 
feet  claimed;  (5)  description  of  claim  by  reference  to 
natural  objects  or  permanent  monuments.^" 

Idaho. — Within  thirty  days  from  the  time  of  location 
the  locator  must  file  for  record,  in  the  district  in  which 
the  same  is  situated,  or  in  the  office  of  the  county 
recorder,  a  substantial  copy  of  his  notice  of  location, 
which  must  contain:  (1)  date  of  location;  (2)  name  of 
locator;  (3)  name  and  dimensions  of  the  claim;  (4)  the 
mining  district  (if  any)  and  county  in  which  the  same 
is  situated;  (5)  the  distance  and  direction  of  the  post 
on  which  the  notice  is  posted  from  such  natural  object 
or  permanent  monument,  if  any  such  there  be,  as  will 
fix  and  describe  in  the  notice  itself  the  location  of  the 
claim.  An  affidavit  of  one  of  the  locators  must  be 
attached.^^ 

Montana. — The  requirements  in  Montana  are  sub- 
stantially the  same  as  in  case  of  lode  locations,''  sub- 
stituting the  number  of  superficial  feet  or  acres  claimed 
in  place  of  the  number  of  linear  feet  and  surface  area 
embracing  the  lode,  and  the  location  thereon  of  the 
discovery  shaft,  cut  or  tunnel." 

Nevada. — The  contents  of  the  certificate  of  location 
are  the  same  as  those  required  in  Colorado,  with  the 
addition  of  (6)  the  kind  and  amount  of  work  done  by 

30  Mills'  Annot.  Stats.,  §  3136;  Rev.  Stats.  1908,  §4205. 
81  Laws  1895,  p.  25,  §§  12,  13,  as  amended— Laws  1897,  p.  12; 
Civ.  Code  1901,  §  2563;  Rev.  Code  1907,  §  3222. 

32  Ante,   §  380,  p.  493. 

33  Rev.  Code  1895,  §  3612;  as  amended— 1901,  p.  140;  1907,  p.  18; 
Rev.  Code  1907,  §  2284. 


§  459  THE  LOCATION  CERTIFICATE  AND  ITS  RECORD.  1088 

him,  and  the  place  on  the  claim  where  said  work  was 
done." 

New  Mexico. — A  duplicate  of  the  location  notice 
must  be  filed  and  recorded  in  the  office  of  the  probate 
clerk  of  the  county  wherein  the  land  located  is  situated 
within  ninety  days  after  such  location  is  made  and 
such  notice  posted  on  the  claim." 

Utah. — Within  thirty  days  from  the  date  of  posting 
the  notice  of  location  a  substantial  copy  thereof  must 
be  filed  for  record  in  the  office  of  the  county  recorder, 
or  of  the  mining  district  recorder,  if  there  be  one.^' 

Washington. — Within  thirty  days  from  date  of  dis- 
covery, the  notice  of  location  must  be  recorded  in  the 
office  of  the  auditor  of  the  county  in  which  the  discov- 
ery was  made." 

Wyoming. — Within  ninety  days  after  the  date  of  dis- 
covery the  location  certificate  must  be  recorded  with 
the  county  clerk  and  ex-officio  register  of  deeds.  The 
certificate  must  contain;  (1)  the  name  of  the  claim, 
designating  it  as  a  placer;  (2)  the  name  of  the  locator; 
(3)  date  of  location;  (4)  number  of  feet  or  acres 
claimed;  (5)  a  description  of  the  claim  by  designation 
of  such  natural  or  fixed  objects  as  shall  identify  the 
claim  beyond  question.^* 

Alaska. — The  recording  of  mining  claims  in  Alaska 
is  regulated  by  acts  of  congress.  Within  ninety  days 
from  the  discovery  of  the  claim   notices    of   location 

84  Comp.  Laws  19O0,  §  221;  Kev.  Laws  1912,  §  2435. 

36  Laws  1909,  p.  191.     Contents  of  location  notice,  ante,  §  442. 

36  Laws  1899,  p.  26,  §  4;  Comp.  Laws  1907,  §  1498;  amended  1909, 
p.  79.     Contents  of  location  notice,  ante,  §  442. 

37  Laws  1899,  p.  71,  as  amended — Laws  1901,  p.  292;  Eem.  &  Bal. 
Codes  1909,  §  7367.     Contents  of  location  notice,  ante,  §  442. 

38  Laws  1888,  pp.  89,  90,  §  22;  Rev.  Stats.  1899,  §  2553,  as  amended 
—Laws  1901,  p.    104;  Comp.  Stats.  1910,  §  3474. 


1089  AMENDMENT  TO  PLACER  LOCATIONS.  §  460 

must  be  recorded  in  the  recording  district  in  which  the 
property  is  situated.  If  not  within  any  established 
recording  district  the  notice  should  be  recorded  in  the 
office  of  the  clerk  of  the  division  having  supervision 
over  the  recording  division.^' 

Arkansas. — Mining  claim  notices  are  to  be  recorded 
in  the  recorder's  office  of  the  ex-officio  recorders  in  the 
different  counties  of  the  state.     No  time  limit  is  fixed." 

§  460.  Amendment  to  placer  locations. — For  the 
purpose  of  curing  imperfections  in  the  original  loca- 
tion, correcting  errors  or  supplying  omissions,  the 
same  latitude  of  amendment  should  be  allowed  as  in 
the  case  of  lode  locations.  This  privilege  may  be  exer- 
cised by  either  the  original  locators  or  their  grantees. 
Obviously,  where  the  original  location  embraced  the 
maximum  limit  under  the  law,  additional  territory  may 
not  be  secured  by  an  amended  location." 

An  individual  owner  of  two  or  more  contiguous 
placer  mining  claims,  having  acquired  the  title  to  both, 
could  not  amend  so  as  to  make  one  location  out  of  the 
two." 

A  location  once  made  based  upon  a  discovery  within 
its  limits  cannot  be  amended  so  as  to  include  an  added 
area  in  the  possession  of  another." 

This  would  seem  obvious,  as  such  an  attempted  loca- 
tion would  be  a  trespass  upon  a  possession  acquired  by 
an  intervening  locator. 

We  are  of  the  opinion,  however,  that  where  a  locator 
or  an  association  of  persons  locates  an  area  less  than 

39  Alaska  Codes,  p.  7;   Carter's  Ann.  Codes,  p.  137, 

40  Acts  1899,  p.  113;  amended  Digest  of  Statutes,  1904,  §  5360. 

41  Garden  Gulch  Placer  Claim,  38  L.  D.  28;  In  re  Head,  40  L.  D.  135. 

42  Garden  Gulch  Placer  Claim,  38  L.  D.  28;  In  re  Head,  40  L.  D.  135, 

43  Biglow  V.  Conradt,  159  Fed.  8(58,  870,  47  C,  C,  A.  48. 

Lindley  on  M. — 69 


§  463  CONCLUSION.  1090 

the  maximum  allowed  by  law,  an  amendment  may  be 
made  so  as  to  include  contiguous  territory,  provided 
the  location  as  amended  does  not  exceed  the  statutory 
limit,  the  added  area  is  subject  to  appropriation  and 
discovery  is  made  in  the  added  area.*^* 


Article  VIII.    Conclusioi^. 

§  463.     General  principles  announced  in  previous  chapter  on  lode  loca* 
tions  apply  with  equal  force  to  placers. 

§  463.  GeneraJ  principles  announced  in  previous 
chapter  on  lode  locations  apply  with  equal  force  to 
placers. — The  architecture  of  existing  mining  legisla- 
tion is  a  composite  of  incongruous  elements — an  aggre- 
gation of  piecework,  which  does  not  present,  in  outline,  ^ 
that  symmetrical  form  or  structure  which  commends 
itself  to  the  professional  eye.  There  is  a  total  lack  of 
harmonious  blending,  and  it  is  often  difficult  to  deter- 
mine what  provisions  of  the  law  apply  distinctively  to 
lode  locations,  and  what  to  placers;  or  what,  in  con- 
templation of  law,  is  to  be  applied  to  both. 

The  laws  governing  both  classes  had  a  common 
origin,  and  during  the  period  when  local  rules  and  cus- 
toms held  sway  the  only  differences  between  them  were 
as  to  the  extent  of  property  rights  enjoyed,  and  such 
as  were  made  necessary  by  the  difference  in  the  form 
in  which  the  deposits  occurred.  But  discovery  and 
appropriation  were  the  sources  of  the  miner's  title,  and 
continuous  development  the  condition  of  its  perpetua- 
tion in  the  case  of  both  lodes  and  placers.  Congress 
manifestly  recognized  these  as  the  basis  of  its  mining 
legislation,  and  as  a  rule  the  courts  have  applied  the 

*3a  As  to  necessity  for  discovery  in  added  area,  see  Phillips  v.  Brill, 
17  Wyo.  26,  95  Pac.  856,  859. 


1091      GENER:VL    PRINCIPLES    OF    LOCATIONS    APPLICABLE.       §  463 

general  underlying  principles  applicable  to  one  class  of 
locations  to  the  other,  so  far  as  the  nature  of  the  de- 
posits would  permit. 

The  previous  chapter  on  the  subject  of  lode  locations, 
dealing  with  the  location  and  its  requirements,  the  dis- 
covery, the  manner  of  locating,  the  marking  of  the 
boundaries,  the  changing  of  these  boundaries,  and 
amendment  of  location  certificates,  the  relocation  of 
forfeited  or  abandoned  claims,  applies  in  the  main  to 
placers,  except  so  far  as  the  nature  of  placer  deposits 
obviously  demands  a  discrimination.  There  is  no 
extralateral  right  attached  to  a  placer  claim  pure  and 
simple.  Therefore,  the  laws  as  they  are  construed  by 
the  courts,  with  reference  to  end  and  side  lines  and  the 
pursuit  of  veins  beyond  vertical  planes  drawn  through 
surface  boundaries,  have  no  reference  to  placers. 

For  the  purpose  of  systematic  treatment,  owing  to 
certain  peculiar  attributes  pertaining  to  lode  locations, 
it  was  necessary  to  consider  the  two  classes  and  their 
mode  of  appropriation  separately.  But  there  are  many 
things  in  common  between  them,  as  we  think  will  be 
readily  obser\^ed  by  a  consideration  of  this  and  the  two 
preceding  chapters. 


CHAPTER    IV. 

TUNNEL  CLAIMS. 

Aeticle  I.    Introductory. 

II.    Manner  of  Perfecting  Tunnel  Locations. 
III.     Eights  Accruing  to  the  Tunnel  Pkoprietob  by  Vietub 
OF  His  Tunnel  Location. 


Aeticle  I.    Introductory. 


§  467.  Tunnel  locations  prior  to 
the  enactment  of  fed- 
eral laws. 


§  468.     The  provisions  of  the  fed- 
eral law. 


§  467.  Tunnel  locations  prior  to  the  enactment  of 
federal  laws. — Tunnel  locations,  or,  as  they  are  some- 
times called,  ''tunnel-sites,"  occupy  a  unique  position  ^ 
in  practical  mining  upon  the  public  domain.  They 
were  not  unknown  during  the  period  antedating  the 
enactment  of  congressional  mining  laws.  The  dis- 
covery of  a  new  mineral  belt  frequently  gave  birth  to 
local  rules  upon  the  subject  of  tunnels,  and  it  was  by 
no  means  an  uncommon  occurrence  for  tunnel  loca- 
tions to  be  made  on  the  four  slopes  of  a  mountain, 
their  projected  lines  running  into  the  hill  from  every 
conceivable  point  of  the  compass,  and  at  different 
elevations  above  the  mountain's  base,  from  one  hun- 
dred to  several  thousand  feet.  The  practical  develop- 
ment of  the  mines  was,  as  a  rule,  from  surface  dis- 
coveries on  the  crest  of  the  mountain,  or  its  benches 
and  sloping  ridges.  Strife  or  litigation  between  sur- 
face locators  and  tunnel  proprietors  rarely,  if  ever, 
arose,  for  the  simple  reason  that,  according  to  the 
popular  view,  priority  of  discovery,  whether  from  the 
surface  or  in  the  tunnel,  established  a  priority  right. 
In  many  localities,  the  life  of  the  camp  was  short,  and 

(1092) 


1093      TUNNEL  LOCATIONS  PRIOR  TO  FEDERAL   STATUTES.       §  467 

most  of  the  tunnel  projects  began  and  ended  with  the 
staking  of  a  line,  the  incorporation  of  a  company  with 
a  fabulous  capital,  and  the  tunnel  bore  barely  entering 
under  cover. 

We  think  it  may  be  fairly  stated  that  prior  to  any 
legislation  upon  the  subject  by  congress,  in  popular 
estimation,  the  purpose  of  a  tunnel  location  was  that 
of  discovery  of  blind  veins,  or  deposits,  whose  exist- 
ence it  might  be  difficult,  if  not  impossible,  to  estab- 
lish by  surface  exploration,  and  that  such  discovery, 
by  means  of  the  tunnel,  should  be  treated  as  the 
equivalent  of  one  made  from  the  surface.  As  to  ques- 
tions of  priority,  it  was  a  mere  race  of  diligence. 
Rights  upon  the  discovered  lode  dated  from  the  dis- 
covery in  the  tunnel,  and  not  from  the  date  of  the 
tunnel  location.  Surface  prospecting  witliin  the  vi- 
cinity of  the  projected  tunnel  line  was  not  inhibited. 
It  is  possible  that  the  chances  of  a  successful  dis- 
covery in  some  formations  were  in  favor  of  the  tun- 
nel method  and  this  may  have  been  the  inducement 
for  projecting  it,  but  the  tunnel  locator's  privilege 
was  not  understood  to  be  an  exclusive  one  within  any 
defined  surface  area.  We  do  not  assert  that  this  was 
the  universal  rule,  or  that  it  was  of  such  general  ob- 
servance as  to  lead  to  the  inference  that  congress  had 
it  in  mind  when  it  legislated  upon  the  subject.  AVe 
do  not  know  that  to  have  been  the  fact.  We  have 
strong  convictions  upon  the  subject,  but  it  would  be 
difficult  to  assert  that  in  construing  congressional 
legislation,  as  we  are  about  to  do,  these  antecedent 
conditions,  popular  theories,  and  local  experiences 
should,  or  could,  legally  be  resorted  to  as  an  aid  to 
interpretation. 

Dr.  R.  W.  Raymond,  while  acting  as  the  govern- 
ment's special  commissioner  for  the  collection  of  min- 


§  467  INTRODUCTORY.  1094 

ing  statistics  in  the  states  and  territories  west  of  the 
Eocky  Mountains,  refers  to  the  "tunnel  fever"  which 
flourished  in  Clear  Creek  county,  Colorado,  and  other 
outlying  districts  in  that  state,  and  presented  some 
views  on  the  subject  which  in  the  light  of  subsequent 
experiences  are  quite  prophetic/ 

In  an  able  article  contributed  to  the  "Mineral  In- 
dustry,"^ the  same  gentleman  reviews  the  history  of 
tunnel  legislation  and  comments  in  an  interesting  and 
logical  way  upon  some  of  the  vices  and  inherent  de- 
fects in  the  legislation,  as  well  as  upon  some  of  the 
embarrassments  surrounding  the  practical  applica- 
tion of  the  law  in  the  light  of  its  more  modem  inter- 
pretation by  the  courts. 

In  construing  the  first  mining  laws  of  congress, 
which  were  but  the  crystallization  of  the  miners'  rules 
and  customs  theretofore  in  force,  the  courts  had  for 
their  guide  many  adjudications  made  during  the 
earlier  history  of  mining  in  the  west,  enabling  them 
to  catch  the  spirit  of  these  local  regulations  and  in- 
terpret the  federal  law  in  the  light  of  such  precedents. 
But  as  to  rights  flowing  from  tunnel  locations,  there 
were  practically  no  judicial  precedents.  The  "tunnel 
fever"  broke  out  after  the  passage  of  the  act  of  1866, 
but  too  near  the  passage  of  the  act  of  1872  to  give 
opportunity  for  judicial  interpretation.  The  tunnel 
laws  now  under  consideration  were  incorporated  in 
the  act  of  May  10,  1872,  and  in  construing  them  the 
courts  have  been  compelled  practically  to  break  new 
ground.  The  net  results  thus  far  reached  will  be  ex- 
plained and  illustrated  in  the  succeeding  sections. 

1  "Mineral  Resources  West  of  the  Eocky  Mountains"   (1871),  p.  322. 

2  Vol.  vi,  p.  681  (1897). 


1095  PROVISIONS  OF  FEDERAJL  LAW.  §  468 

§  468.  The  provisions  of  the  federal  law. — We  are 
not  at  present  concerned  with  the  act  of  congress  of 
February  11,  1875,^  providing  that  development  work 
performed  in  running  a  tunnel  shall  be  estimated  as 
work  done  upon  the  lodes  with  like  effect  as  if  done 
from  the  surface.  This  act  has  no  particular  bearing 
upon  the  subject  now  under  consideration.  We  are 
now  called  upon  to  construe  section  four  of  the  act  of 
May  10,  1872,  which  is  embodied  in  the  Revised  Stat- 
utes, and  is  as  follows: — 

§  2323.  Where  a  tunnel  is  run  for  the  develop- 
ment of  a  vein  or  lode,  or  for  the  discovery  of  mineS; 
theowners  of  such  tunnel  shall  have  the  right  of 
jTossession  of  all  veins  or  lodes,  within  three  thou- 
sand feet  from  the  face  of  such  tunnel  on  the  line 
thereof,  not  previously  known  to  exist,  discovered 
in  such  tunnel,  to  the  same  extent  as  if  discovered 
from  the  surface;  and  locations  on  the  line  of  such 
tunnel  of  veins  or  lodes,  not  appearing  on  the  sur- 
face, made  by  other  parties  after  the  commencement 
of  the  tunnel,  and  while  the  same  is  being  prose- 
cuted with  reasonable  diligence,  shall  be  invalid; 
but  failure  to  prosecute  the  work  on  the  tunnel  for 
six  months  shall  be  considered  as  an  abandonment 
of  the  right  to  all  undiscovered  veins  on  the  line  of 
such  tunnel. 

Concerning  this  legislation,  Dr.  Raymond  ver>^  ap- 
propriately remarks: — 

This  is  the  only  provision  of  the  Revised  Statutes 
concerning  tunnel  rights.  Perhaps  it  is  fortunate 
that  there  are  no  more.  Certainly  this  one  is  am- 
biguous and  perplexing  enough,  and  additional  ones 
of  the  same  character  would  have  made  confusion 
worse  confounded 

8  18  stats,  at  Large,  p.  315;  Comp.  Stats.  1901,  p.  1427;  5  Fed.  Stats. 
Ann.  21. 


§  472  MANNER   OF   PERFECTING   TUNNEL   LOCATION. 


1096 


As  an  amendment  to  the  act  of  1866,  it  is,  taken 
by  itself,  simple  and  clear  enough,  though  perhaps 
not  wise.  As  a  part  of  the  act  of  1872,  it  is  incon- 
sistent, incomplete,  and  mischievous.* 

These  caustic  epigrams  express  the  situation,  but 
afford  no  substantial  aid  in  the  interpretation  of  the 
law.  They  suggest  difficulties  almost  insurmountable, 
but  give  no  light  upon  the  rule  of  construction. 


Aeticle  II.    Manner    of    Perfecting    Tunnel 

Location. 


472.  Acts   to   be   performed    in 

acquiring  tunnel  rights. 
472a.  State    legislation    regulat- 
ing tunnel  locations. 

473.  "Line"  of  tunnel  defined. 


§  474.     "Face"   of  tunnel   defined. 
§  475.     The   marking   of   the   tun 

nel      location      on      the 

ground. 


§  472.  Acts  to  be  performed  in  acquiring  tunnel 
rights. — The  statute  is  silent  as  to  the  manner  in 
which  a  tunnel  location  is  to  be  perfected.  It  is  not 
a  mining  claim,  although  it  has  sometimes  been  in- 
accurately called  one.  It  is  simply  a  means  of  ex- 
ploration.'' This  subject  is  left  to  miners'  customs 
and  state  statutes.^  It  is  also  to  some  extent  at  least 
regulated  by  rules  prescribed  by  the  commissioner  of 
the  general  land  office,  under  the  direction  of  the 
secretary  of  the  interior,  the  authority  for  such  regu- 
lation being  found  in  the  provisions  of  the  Revised 
Statutes.^     These   rules,   prescribed   in   pursuance   of 

*  Monograph,  "Tunnel  Eights  under  the  United  States  Mining  Law," 
Mineral  Industry,  vol.  vi,  p.  680. 

5  Creede  &  Cripple  Creek  M.  &  M.  Co.  v.  Uinta  T.  M.  &  T.  Co.,  196 
U.  S.  337,  355,  357,  25  Sup.  Ct.  Eep.  266,  49  L.  ed.  501. 

6  Creede  &  Cripple  Creek  M.  &  M.  Co.  v.  Uinta  T.  M.  &  T.  Co.,  196 
U.  S.  337,  355,  25  Sup.  Ct.  Rep.  266,  49  L.  ed.  501. 

7  §2478;   Comp.  Stats.  1901,  p.  1586;   6  Fed.  Stats.  Ann.  529. 


1097  ACTS  TO  BE  PERFORMED.  §  472 

such  authority,  become  a  mass  of  that  body  of  public 
records,  of  which  the  courts  take  judicial  notice,^  and 
when  not  repugnant  to  the  acts  of  congress  have  the 
force  and  effect  of  laws.' 

By  these  rules^''  the  tunnel  locator  is  required,  as 
soon  as  his  projected  tunnel  enters  cover,  to  give 
notice  by  erecting  a  substantial  board  or  monument 
at  the  "face,"  or  point  of  commencement  thereof, 
upon  which  must  be  posted  a  good  and  sufficient 
notice,  containing: — 

(1)  The  names  of  the  parties  or  company  claiming 
the  tunnel  right; 

(2)  The  actual  or  proposed  course  or  direction  of 
the  tunnel; 

(3)  The  height  and  width  thereof; 

(4)  The  course  and  distance  from  such  face  or  point 
of  commencement  to  some  permanent  well-known  ob- 
jects in  the  vicinity,  by  which  to  fix  and  determine  the 
locus,  as  in  case  of  lode  claims. 

The  "boundary  lines'^  thereof  are  to  be  established 
by  stakes  and  monuments  along  such  lines,  at  proper 

8  Caha  V.  United  States,  152  U.  S.  211,  217,  14  Sup.  Ct.  Eep.  513, 
38  L.  ed.  415;  Whitney  v.  Spratt,  25  Wash.  62,  87  Am.  St.  Rep.  732,  64 
Pac.  919;  Van  Gesner  v.  United  States,  153  Fed.  46,  52,  82  C.  C.  A. 
480;  United  States  v.  McClure,  174  Fed.  510,  511;  Leonard  v.  Lennox, 
181  Fed.  760,  764,  104  C.  C.  A.  296. 

9  Poppe  V.  Athearn,  42  Cal.  607,  609;  Rose  v.  Nevada  &  G.  V.  Wood 
&  Lumber  Co.,  73  Cal.  385,  15  Pac.  19,  20;  Chapman  v.  Quinn,  56  Cal. 
266,  273;  United  States  v.  Mackintosh,  85  Fed.  333,  337,  29  C.  C.  A. 
176;  Cosmos  Exploration  Co.  v.  Gray  Eagle  Oil  Co.,  112  Fed.  4,  50  C. 
C.  A.  79,  6 J  L.  R.  A.  230,  21  Morr.  Min.  Rep.  633;  S.  C,  on  appeal, 
190  U.  S.  301,  23  Sup.  Ct.  Rep.  692,  24  Sup.  Ct.  Rep.  860,  47  L.  ed. 
1064.  And  see  Orchard  v.  Alexander,  157  U.  S.  372,  383,  15  Sup.  Ct.  Rep. 
635,  39  L.  ed.  741;  Germania  Iron  Co.  v.  James,  89  Fed.  811,  815,  32 
C.  C.  A.  348;  James  v.  Germania  Iron  Co.,  107  Fed.  597,  600,  46  C.  C.  A. 
476;  Van  Gesner  v.  United  States,  153  Fed.  46,  82  C.  C.  A.  ISO. 

10  See  Mining  Regulations,  July  26,  1901,  March  29,  1909,  pars. 
16-18.     See  Appendix. 


§  472a      manner  of  perfecting  tunnel  location.         1098 

intervals,  to  tlie  terminus  of  tlie  three  thousand  feet 
from  the  "face,"  or  point  of  commencement. 

At  the  time  of  posting  the  notice  and  marking  out 
the  lines,  a  full  and  correct  copy  of  such  notice,  de- 
fining the  tunnel  claim,  must  be  filed  for  record  with 
the  mining  recorder  of  the  district,  to  which  notice 
must  be  attached  the  sworn  statement  or  declaration 
of  the  owners,  claimants,  or  projectors  of  such  tunnel, 
setting  forth  the  facts  in  the  case,  stating  the  amount 
expended  by  themselves  and  their  predecessors  in  in- 
terest in  prosecuting  work  thereon,  the  extent  of  work 
performed,  and  that  it  is  their  bona  fide  intention  to 
prosecute  work  on  the  tunnel  so  located  and  described, 
with  reasonable  diligence.  As  to  what  lines  are  to  be 
marked,  we  shall  consider  in  a  subsequent  section. 

§  472a.  State  legislation  regulating  tunnel  loca- 
tions.— But  three  states  have  any  legislation  on  this 
subject.  California  provides  for  a  location  notice  to 
be  posted  at  the  face  or  point  of  commencement, 
which  must  contain  the  name  of  the  locator,  date  of 
location,  the  proposed  course  or  direction  of  the  tunnel, 
and  a  description  with  reference  to  natural  objects  or 
permanent  monuments.  The  boundarj^  lines  of  the 
tunnel  shall  be  established  by  stakes  or  monuments 
placed  along  the  lines  at  intervals  of  not  more  than  six 
hundred  feet.  The  notice  must  be  recorded  within 
thirty  days  after  posting." 

Colorado  simply  provides  that  the  locator  shall 
record  the  location,  specifying  the  place  of  commence- 
ment and  termination  thereof,  with  the  names  of  the 
parties  interested  therein.^^ 

11  Civ.  Code,  sees.  1426e-1426g. 

12  Mills'  Annot.  Stats.  §3140;  Gen.  Stats.  1883,  p.  720;  Rev.  Stata. 
1908,  §  4207. 


1099  "line"  of  tunnel  defined.  §473 

Nevada  has  a  statute  similar  to  California,  provid- 
ing, however,  that  the  notice  shall  also  define  the 
height  and  width  of  the  tunnel.  The  boundar>^  lines 
are  to  be  marked  by  stakes  at  intervals  of  not  more 
than  three  hundred  feet.  The  location  notice  must  be 
recorded  with  both  the  mining  district  and  county  re- 
corders.^^ 

The  statute  further  provides  that  all  veins  or  lodes 
discovered  in  the  tunnel  must  be  located  at  the  sur- 
face, the  same  as  other  lode  claims.^* 

These  provisions  of  the  laws  of  Nevada  relating  to 
tunnels  are  embodied  in  a  general  statute,  covering  all 
classes-  of  locations,  which  contains  a  section  which 
provides  that  the  act  shall  be  construed  as  equally 
applicable  to  all  classes  of  location,  except  when  the 
requirements  as  to  any  one  class  is  manifestly  inappli- 
cable to  any  other  class  or  classes." 

The  provisions  of  these  various  statutes  will  be  noted 
when  and  if  they  become  important  in  the  discussion 
which  follows. 

§  473.  "Line"  of  tunnel  defined.— The  tunnel  pro- 
prietor is  accorded  by  the  statute  the  right  of  pos- 
session of  all  veins  or  lodes  within  three  thousand  feet 
from  the  face  of  the  tunnel  on  the  line  thereof,  not  pre- 
viously known  to  exist,  discovered  in  such  tunnel;  and 
locations  on  the  line  of  such  tunnel  of  veins  or  lodes  not 
appearing  at  the  surface,  made  by  other  parties  after 
the  commencement  of  the  tunnel  and  while  the  same  is 
being  prosecuted  with  reasonable  diligence,  shall  be  in- 
valid. The  word  "line"  appears  in  no  other  connec- 
tion in  the  statute.     As  we  shall  hereafter  note,  the 

13  Comp.  Laws  1900,  §§226-228;  Rev.  Laws   1912,   §§2440-2442. 
1*  Comp.  Laws  1900,  §  229;  Rev.  Laws  1912,  §  2443. 
16  Comp.  Laws  1900,  §230;   Rev.  Laws  1912,  §2444. 


§  473  MANNER   OP   PERFECTING   TUNNEL  LOCATION.  1100 

statute  is  silent  as  to  the  manner  of  marking  tlie  tunnel 
location  on  the  ground.  The  character  of  this  marking 
is  defined  in  the  regulations  adopted  by  the  secretary  of 
the  interior,  and  in  two  of  the  states,  California  and 
Nevada,  by  statutes,  the  state  legislation  not,  however, 
differing  essentially  from  the  departmental  regulations. 
These  regulations  require  that  the  boundary  lines  of 
the  tunnel  shall  be  marked  by  stakes  or  monuments 
placed  along  such  lines  at  proper  intervals  to  the 
terminus  of  the  three  thousand  feet  from  the  face  or 
point  of  commencement  of  the  tunnel,  ''and  the  lines  so 
marked  will  define  and  govern  as  to  specific  boundaries 
within  which  prospecting  for  lodes  not  previously 
known  to  exist  is  prohibited."^" 

"We  have  therefore  to  consider  the  phrase  ^^line  of 
the  tunneV  in  two  aspects, — the  line  that  is  to  be 
marked  on  the  surface,  and  the  lines  which  define 
boundaries  within  which  prospecting  at  the  surface  by 
third  parties  is  practically  inhibited.  The  natural  as- 
sumption would  be  that  stated  in  the  regulations, — the 
lines  to  be  marked  on  the  surface  means  the  lines  within 
which  prospecting  is  prohibited.  But  on  this  subject 
there  seems  to  be  some  confusion  of  thought  observable 
in  the  decisions. 

So  far  as  the  land  department  is  concerned,  we  find 
the  following  views  to  have  been  expressed: — 

In  the  case  of  Corning  Tunnel  M.  &  R.  Co.  v.  Pell,'^ 
the  commissioner  of  the  general  land  office  held  that  the 
line  of  the  tunnel  named  in  the  statute  was  the  width  of 
the  tunnel  bore  (six  feet)  and  three  thousand  feet  long, 
not  a  rectangular  parallelogram,  three  thousand  feet 
square  or  three  thousand  feet  by  fifteen  hundred  feet. 

16  Regulations  Land  Department,  par,  18.     See  Appendix. 

17  3  Copp's  L.  O.  130,  131. 


1101  "face"  of  tunnel  defined.  §474 

All  of  its  rulings  on  this  point  have  boon  to  the  same 
effect.  According  to  the  interpretation  by  the  depart- 
ment, prospecting  at  the  surface  was  only  inhibited 
within  these  narrow  limits.^® 

This  view  was  fully  approved  by  the  supreme  courts 
of  Colorado'^  and  Montana,'"  and  inferentially  upheld 
by  the  supreme  court  of  Idaho.-^ 

The  circuit  court  of  appeals  for  the  eighth  circuit, 
while,  as  we  shall  hereafter  note,  determining  that  the 
area  within  which  prospecting  is  inhibited  is  the 
rectangular  parallelogram  three  thousand  feet  square, 
refers  to  the  discovery  on  the  line  of  the  tunnel  as 
necessarily  indicating  the  width  and  course  of  the 
bore." 

But  there  was  no  attempt  to  judicially  define  what 
was  meant  by  the  lines  of  the  tunnel  which  are  required 
to  be  marked  by  departmental  regulations.  Our  de- 
ductions as  to  the  required  marking  will  be  found  in  a 
subsequent  section.-^ 

§  474.  ' ' Face ' '  of  tunnel  defined.— The  land  depart- 
ment construes  the  term  "face  of  such  tunnel,"  as  used 
in  the  Revised  Statutes,  to  mean  the  first  working  face 
formed  in  the  tunnel,  and  to  signify  the  point  at  which 
the  tunnel  actually  enters  cover;  it  being  from  this 

18  In  re  David  Hunter,  5  Copp's  L.  O.  130;  In  re  John  Hunter,  Copp's 
Min.  Lands,  222;  In  re  J.  B.  Chaffee,  Copp's  U.  S.  Min.  Dec.  144. 

19  Corning  Tunnel  Co.  v.  PeU,  4  Colo.  508,  511,  14  Morr.  Min.  Rep. 
612. 

20  Hope  M.  Co.  V.  Brown,  7  Mont.  550,  557,  19  Pac.  218,  220;  Id.,  11 
Mont.  370,  379,  28  Pae.  732,  733. 

21  Back  V.  Sierra  Nev.  Cons.  M.  Co.,  2  Idaho,  386.  17  Pac.  83,  85. 

22  Enterprise  M.  Co.  v.  Rico-Aspen  Cons.  M.  Co.,  66  Fed.  200,  211,  13 
C.  C.  A.  390. 

23  Post,   §  475. 


§  475  MANNER   OF   PERFECTING   TUNNEL   LOCATION.  1102 

point  that  the  three  thousand  feet  are  to  be  measured. 
There  is  no  room  for  dispute  as  to  this.^* 

While  it  is  true  that  in  the  conduct  of  active  mining 
operations,  as  work  advances  the  face  of  the  drift  or 
tunnel  recedes  farther  into  the  hill,  and  its  locus  is 
constantly  changed,  yet  the  word  as  used  in  the  tunnel 
law  can  mean  but  the  one  thing  and  that  is  the  first  full 
exposure  of  height  and  width  after  entering  under 
cover.  It  was  manifestly  intended  that  the  length  of 
the  open  surface  approach  to  where  the  tunnel  enters 
cover  was  not  to  be  considered  in  estimating  the  three 
thousand  feet,  and  for  that  reason  the  term  "face"  was 
used. 

§  475.  The  marking  of  the  tunnel  location  on  the 
ground. — In  marking  the  tunnel  location  on  the  surface 
it  has  been  the  custom  to  mark  it  by  two  parallel  lines  of 
stakes  defining  the  width  of  the  tunnel  bore  and  follow- 
ing the  course  of  the  projected  tunnel  to  the  length  of 
three  thousand  feet.  This  was  the  construction  placed 
by  the  land  department  upon  the  phrase  "line  of  the 
tunnel"  employed  in  the  statute,  and  was  the  marking 
contemplated  by  the  departmental  regulations.^^ 

Strictly  speaking,  for  the  purpose  of  marking,  this 
is  the  line  of  the  tunnel.  At  the  same  time  it  is  now 
well  settled  that  such  marking  does  not  define  the  area 
within  which  prospecting  at  the  surface  is  inhibited.-® 

Logically,  the  marking  of  the  tunnel  location  should 
be  effected  by  marking  the  exterior  boundaries  of  the 
parallelogram,  within  the  area  of  which  prospecting  is 
not  permitted,  or,  rather,  permitted  at  the  peril  of  the 

2*  See  monograph  by  Dr.  Raymond  entitled  "Tunnel  Rights  Under  the 
United  States  Mining  Laws,"  Min.  Ind.,  vol.  vi,  pp.  681,  686. 

25  Ante,  §  473. 

26  Post,  §  489. 


1103     IMPORTANT  QUESTIONS  SUGGESTED  BY  TUNNEL  LAW.      §  479 

prospector.  As  a  matter  of  caution,  the  line  and  width 
of  the  projected  tunnel  bore,  as  well  as  the  exterior 
boundaries  of  the  parallelogram,  should  be  marked  at 
the  surface. 


Article  III.  Rights  Accruing  to  the  Tunnel 
Proprietor  by  Virtue  of  His  Tunnel  Loca- 
tion. 


§  479.  Important  questions  sug- 
gested by  the  tunnel  law. 

§  480.  Rule  of  interpretation  ap- 
plied. 

§  481.     Length     upon      the      dis- 
covered lode  awarded  to 
/-    the  tunnel  discoverer. 

§  482.  Necessity  for  appropria- 
tion of  discovered  lode 
by  surface  location. 

§  483.     To    what    extent    does   the 
inception     of     a     tunnel 
right    and    its    perpetua- 
tion by  prosecuting  work 
■with  reasonable  diligence 
operate  as  a  withdrawal 
of  the  surface  from  ex- 
ploration by  others? 
§  484.     The  Colorado  rule. 
§  485.     The  Montana  rule. 
§  486.     The  Idaho  rule. 


§  487. 
§  488. 


§  489. 


§  490. 


Judge   Hallett's   views. 

The  doctrine  announced  by 
the  circuit  court  of  ap- 
peals, eighth  circuit. 

Tunnel  locations  before 
the  supreme  court  of 
the  United  States. 

Opinions  of  the  land  de- 
partment. 
§  490a.  Rights  of  junior  tunnel  lo- 
cator as  against  senior 
mining  claims  on  the  line 
of  the  tunnel. 

Inquiries  suggested  in  the 
light  of  rules  thus  far 
enunciated  by  the  su- 
preme court  of  the 
United  States  as  to  the 
extent  of  the  rights  of  a 
tunnel  locator  on  a  vein 
discovered  in  the  tunnel. 


§  49L 


§  479.  Important  questions  suggested  by  the  tunnel 
law.— The  provisions  of  the  law  upon  the  subject  of 
tunnel  locations  present  for  consideration  several  im- 
portant questions,  the  solution  of  which  has  engaged 
the  attention  of  the  courts,  both  state  and  federal.  The 
inquiries  suggested  may  be  thus  formulated: — 

(1)  What  are  the  rights  accruing  to  the  tunnel  pro- 
prietor by  virtue  of  a  discovery  made  in  the  tunnel, 


§  480  •      RIGHTS  ACCRUING  TO  THE  TUNNEL  PROPRIETOR.  1104 

in  the  absence  of  conflicting  rights  acquired  by  surface 
discovery? 

(2)  To  what  extent  does  the  inception  of  a  tunnel 
right  and  its  perpetuation  by  prosecuting  work  with 
diligence  operate  as  a  withdrawal  of  the  surface  from 
exploration  by  others? 

(3)  What  rights,  if  any,  are  secured  by  a  junior  tun- 
nel locator  as  against  senior  mining  locations  which  are 
covered  by  the  line  of  the  tunnel  bore? 

Some  incidental  questions  necessarily  arise,  the  cor- 
rect solution  of  which  depends  upon  reaching  a  satis- 
factory conclusion,  by  way  of  answers,  to  one  or  the 
other  of  the  foregoing  inquiries. 

§  480.  Rule  of  interpretation  applied. — It  is  an  ele- 
mentary rule  in  the  interpretation  of  laws  that  a  given 
statute  should  be  construed  in  connection  with  all  other 
statutes  which  are  essentially  in  pari  materia.^'' 

In  applying  this  doctrine  to  the  tunnel  laws,  and 
attempting  a  construction  which  would  be  in  harmony 
with  the  entire  body  of  the  mining  law,  the  courts,  state 
and  federal,  have  encountered  serious  difficulties,  and 
have  reached  results  which  practically  place  locations 
on  lodes  discovered  in  a  tunnel  located  under  the  tunnel 
laws  in  a  distinct  category  by  themselves,  leaving  still 
open  for  discussion  many  important  questions  which 
will  have  to  be  adjusted  without  regard  to  the  main 
body  of  the  mining  laws.  This  will  be  made  manifest 
as  we  outline  the  state  of  the  law  as  announced  by  the 
courts. 

27  Pennington  v.  Coxe,  2  Cranch,  33,  2  L.  ed.  199;  Washington  Market 
Co.  V.  Hofieman,  101  U.  S.  112,  115,  25  L.  ed.  782;  Piatt  v.  Union 
Pac.  E.  R.,  99  U.  S.  48,  59,  25  L.  ed.  424;  Kohlsaat  v.  Murphy,  96  U.  S. 
153,  160,  24  L.  ed.  844;  Heydenfeldt  v.  Daney  G.  &  S.  M.  Co.,  93  U. 
S.  634,  638;  Neal  v.  Clark,  95  U.  S.  704,  708,  24  L.  ed.  586. 


1105     LENGTH  ON  LODE  AWARDED  TO  TUNNEL  DISCOVERER.      §  481 

§  431.  Length  upon  the  discovered  lode  awarded  to 
the  tunnel  discoverer. — Section  twenty-three  hundred 
and  twenty  of  the  Revised  Statutes  provides  that  a 
mining  location  based  upon  a  surface  discovery  may 
equal,  but  shall  not  exceed,  fifteen  hundred  feet  in 
length. 

As  to  the  length  on  the  discovered  lode  to  which  the 
tunnel  discoverer  is  entitled,  Judge  Hallett  was  of  the 
opinion  that  it  was  not  fixed  by  the  act  of  congress, 
but  was  left  to  local  regulation,  and  that,  in  the  ab- 
sence of  such  regulation,  nothing  would  pass  but  the 
line  of  the  tunnel.^* 

Prior  to  the  passage  of  the  congressional  law,  a  state 
statute  was  in  existence  in  Colorado,"  fixing  the  length 
at  two  hundred  and  fifty  feet  each  way  from  the  tunnel, 
and  Judge  Hallett  held  this  statute  to  be  controlling 
after  the  enactment  of  the  federal  law.  The  supreme 
court  of  the  United  States  has  incidentally  stated  that 
such  was  the  rule,  but  the  case  then  under  consideration 
arose  out  of  a  location  made  in  1865,  at  a  time  when  the 
state  statute  was  undoubtedly  controlling."^ 

The  supreme  court  of  Colorado  has  determined  that 
this  state  law  was  not  in  force  after  the  passage  of  the 
congressional  law,^'  and  that  a  discovery  in  the  tunnel 
entitled  the  discoverer  to  fifteen  hundred  feet  in  length 
on  the  lode,  under  the  provisions  of  section  twenty- 
three  hundred  and  twenty  of  the  Revised  Statutes, 


32 


28  Rico-Aspen  Cons.  M.  Co.  v.  Enterprise  M.  Co.,  53  Fed.  321,  324. 

29  Mills'   Annot.    Stats.,    §3141    (repealed). 

30  Glacier  Mt.  S.  M.  Co.  v.  Willis,  127  U.  S.  471,  481,  8  Sup.  Ct.  Rep. 
1214,  32  L.  ed.  172. 

31  Followed  in  Enterprise  M.  Co.  v.  Rico-Aspen  M.  Co.,  167  U.  S. 
108,  114,  17  Sup.  Ct.  Rep.  762,  42  L.  ed.  96;  Calhoun  G.  M.  Co.  v. 
Ajax  G.  M.  Co.,  27  Colo.  1,  83  Am.  St.  Rep.  17,  59  Pac.  607.  617.  50  L. 
R.  A.  209;   S.  C,  182  U.  S.  499,  21  Sup  Ct.  Rep.  885,  45  L.  ed.  1200. 

82  Ellet  V.  Campbell,  18  Colo.  510,  33  Pac.  521. 
Lindley  on  M. — 70 


§  482         RIGHTS  ACCRUING  TO  THE  TUNNEL  PROPRIETOR.  1106 

which  ruling  was  followed  by  the  circuit  court  of  ap- 
peals for  the  eighth  circuit,  overruling  the  decision  of 
Judge  Hallett  above  referred  to.^^ 

The  supreme  court  of  Montana  has  stated  that  when 
veins  or  lodes  are  discovered  in  the  tunnel,  the  claim- 
ant will  be  entitled,  as  a  matter  of  right,  to  the  vein  or 
lode  for  fifteen  hundred  feet  in  length,^*  and  this  was 
the  understanding  of  the  law  expressed  by  the  com- 
missioner of  the  general  land  office."^ 

The  supreme  court  of  the  United  States  has  definitely 
settled  the  question  by  announcing  the  rule  that  the 
right  of  a  tunnel  locator  to  locate  a  claim  to  the  vein 
arises  upon  its  discovery  in  the  tunnel,  and  may  be 
exercised  by  locating  that  claim  the  full  length  of  fif- 
teen hundred  feet  on  either  side  of  the  tunnel,  or  in 
such  proportion  thereof  on  either  side  as  the  locator 
may  desire.^* 

§  482.  Necessity  for  appropriation  of  discovered  lode 
by  surface  location. — It  being  well  established  that  the 
tunnel  discoverer  is  entitled  to  fifteen  hundred  feet  in 
length  on  his  discovered  lode,  the  inquiry  naturally 
suggests  itself:  How  is  he  to  disclose  his  intention  as  to 
the  extent  and  direction  in  which  he  shall  take  it,  so  as 
to  inform  others  where  his  rights  end  and  theirs  may 
begin?  How  are  other  prospectors  to  find  out  where 
to  search  for  or  locate  lodes,  with  due  regard  to  the 
rights  of  the  tunnel  discoverer? 

33  Enterprise  M.  Co.  v.  Rieo-Aspen  Cons.  M.  Co.,  66  Fed.  200,  13  C. 
C.  A.  390. 

34  Hope  M.  Co.  V.  Brown,  7  Mont.  550,  555,  19  Pac.  218.  At  one  time 
a  state  law  existed  in  Montana  limiting  the  extent  to  three  hundred  feet 
on  each  side  of  the  discovery,  but  this  has  since  been  repealed  by  im- 
plication.    Civ.   Code   1895,    §4672;    Pol.   Code   1895,   §5186. 

35  Commissioner  Drummond,  Copp's  Min.  Dec.   144. 

36  Enterprise  M.  Co.  v.  Rico-Aspen  M.  Co.,  167  U.  S.  108,  113,  17 
Sup.  Ct.  Rep.  762,  42  L.  ed.  96. 


1107  APPROPRIATION    OF    DISCOVERED    LODE.  §  482 

Judge  Hallett,  in  the  case  of  Rico-Aspen  Cons.  M. 
Co.  V.  Enterprise  M.  Co.,"  ruled  that  in  case  of  a  loca- 
tion based  upon  discovery  made  in  a  tunnel,  it  is  as 
necessary  to  mark  the  boundaries  on  the  surface  and 
file  a  certificate  for  record  as  in  any  other  case.  This 
would  seem  to  be  in  accord  with  the  views  of  Commis- 
sioner Williamson,  who  instructed  the  surveyor-general 
of  Colorado,  that — 

No  patent  can  issue  for  a  vein  or  lode  without  sur- 
face ground,  and  as  the  surface  which  overlies  the 
apex  of  a  vein  or  lode,  discovered  in  a  tunnel  can 
only  be  ascertained  by  sinking  a  shaft,  or  by  follow- 
ing a  lode  up  on  its  dip  from  the  point  of  discover^^, 
no  sun'ey  of  such  lode  will  be  made  until  the  exact 
surface  ground  is  first  ascertained;^* 

and  this  ruling  has  been  uniformly  adhered  to  by  the 
land  department. 

The  supreme  court  of  Colorado,  however,  took  a  dif- 
ferent view.  It  announced  the  rule  that  location  on 
the  surface  by  defining  surface  boundaries  is  not  neces- 
sary. 

Its  argument  is  based  upon  the  following  reason- 
ing:— 

Section  twenty-three  hundred  and  twenty-three 
was  obviously  designed  to  encourage  the  i-unniug 
of  tunnels  for  the  discovery  and  development  of 
veins  or  lodes  of  the  precious  metals  not  appearing 
upon  the  surface  and  not  previously  known  to  exist. 
Little  encouragement  would  the  act  give  if  the  dis- 
coverer of  the  lode  in  a  tunnel  were  bound  also  to 
find  the  apex  and  course  of  such  vein,  uncover 
the  same  from  the  surface,  sink  his  location  shaft 
thereon,  mark  the  boundaries  thereof,  and  record  his 

37  53   Fed.  321,  324. 

38  4  Copp's  L.  0.  102.  See,  alao,  In  re  David  Hunter,  Copp's  Min. 
Lands,  231. 


§  482         RIGHTS  ACCRUING  TO  THE  TUNNEL  PROPRIETOR.  1108 

certificate  of  such  surface  location,  the  same  as  if  he 
had  made  the  original  discovery  from  the  surface. 

The  location  of  a  lode  from  the  surface  is  always 
attended  with  more  or  less  difficulty  and  uncer- 
tainty. Mistakes  occur  in  the  location  of  bound- 
ary lines,  even  where  the  apex  and  course  of  the  vein 
lie  comparatively  near  the  surface.  These  difficulties 
and  uncertainties  are  liable  to  be  greatly  increased 
where  a  lode  is  discovered  by  means  of  a  tunnel 
driven  hundreds  and  thousands  of  feet  into  the  heart 
of  the  great  mountain.  To  require  the  discoverer  of 
a  lode  in  a  tunnel  to  prospect  for  the  vein  upon  the 
surface,  and  uncover  and  mark  its  boundaries  so  as 
to  inalude  the  apex  and  course  within  the  lines  of  the 
surface  location,  would  be  to  require  a  work  of 
supererogation,  for  no  surface  location  is  necessary 
for  the  convenient  working  of  the  lode  discovered 
in  a  tunnel  location  already  made.  Such  require- 
ment would  unnecessarily  burden  the  tunnel  locator 
and  discoverer;  to  the  great  labor  and  expense  of 
tunneling  as  a  means  of  a  location  and  discovery,  it 
would  add  the  labor  and  expense  devolving  upon  the 
ordinary  surface  discoverer  and  locator.  Besides, 
such  a  requirement  would  subject  the  discoverer  of 
a  lode  in  a  tunnel  to  the  hazard  of  a  race  for  its  sur- 
face location;  and  thus  the  discoverer  might  have 
the  fruits  of  his  labor  wrested  from  him  by  a  surface 
locator  who  had  done  nothing  and  expended  nothing 
in  the  original  discovery.^^ 

The  location  of  the  lode  discovered  in  the  tunnel  in 
this  case  was  by  posting  a  notice  at  the  mouth  of  the 
tunnel,  claiming  seven  hundred  and  fifty  feet  on  each 
side  of  the  discovery  point  in  the  tunnel,  five  hundred 
and  ninety-four  feet  from  its  face.  A  notice  was  also 
recorded  in  the  county  recorder's  office,  corresponding 
with  the  posted  notice. 

89  Ellet  V.  Campbell,  18  Colo.  510,  519,  520,  33  Pac.  521,  524. 


1109  APPROPRIATION    OF    DISCOVERED    LODE.  §  482 

The  supreme  court  of  the  United  States,  in  affirming 
the  decision  of  the  state  court,  thus  expresses  itself: — 

It  will  be  noticed  that  the  tunnel  company  posted 
at  the  mouth  of  the  tunnel  a  notice  of  its  discovery 
of  this  lode  and  the  extent  of  its  claim  thereon,  and 
also  that  it  caused  to  be  filed  in  the  office  of  the  re- 
corder of  the  county  a  location  certificate,  as  required 
by  the  local  statute.  Mills'  Ann.  Stats.,  sees.  3150, 
3151.  It  will  also  be  perceived  that  sec.  2323,  Rev. 
Stats.,  gives  to  the  tunnel  discoverer  the  right  of 
possession  of  the  veins.  It  in  terms  prescribes  no 
conditions  other  than  discovery.  The  words  "to  the 
same  extent"  obviously  refer  to  the  length  along 
the  line  of  the  lode  or  vein.  Such  is  the  natural  and 
ordinary  meaning  of  the  words,  and  there  is  nothing 
in  the  context  or  in  the  circumstances  to  justify  a 
broader  and  ditferent  meaning.  Indeed,  the  condi- 
tions surrounding  a  vein  or  lode  discovered  in  a  tun- 
nel are  such  as  to  make  against  the  idea  or  necessity 
of  a  surface  location.  We  do  not  mean  to  say  that 
there  is  any  impropriety  in  such  a  location,  the  lo- 
cator marking  the  point  of  discover}^  on  the  surface 
at  the  summit  of  a  line  drawn  perpendicularly  from 
the  place  of  discovery  in  the  tunnel,  and  about  that 
point  locating  the  lines  of  his  claim,  in  accordance 
with  other  provisions  of  the  statute.  It  may  be  true, 
as  suggested  in  Morrison's  Mining  Rights,  8th  edi- 
tion, page  182,  that  before  a  patent  can  be  secured 
there  must  be  a  surface  location.  Rev.  Stats.,  sec. 
2325.  But  the  patent  is  not  simply  a  grant  of  the 
vein,  for,  as  stated  in  the  section  "a  patent  for  any 
land  claimed  and  located  for  valuable  deposits  may 
be  obtained  in  the  following  manner."  It  must  also 
be  noticed  that  sec.  2322,  in  respect  to  locators,  gives 
them  the  exclusive  right  of  possession  and  enjoy- 
ment of  all  the  surface  within  the  lines  of  their  loca- 
tions, and  all  veins,  lodes,  and  ledges,  the  tops,  or 
apexes,  of  which  are  inside  such  lines.     So  that  a 


§  482         RIGHTS  ACCRUING  TO  THE  TUNNEL  PROPRIETOR.  1110 

location  gives  to  the  locator  something  more  than 
the  right  to  the  vein  which  is  the  occasion  of  the 
location.  But  without  determining  what  would  be 
the  rights  acquired  under  a  surface  location  based 
upon  a  discovery  in  a  tunnel,  it  is  enough  to  hold, 
following  the  plain  language  of  the  statute,  that  the 
discovery  of  the  vein  in  the  tunnel,  worked  accord- 
ing to  the  provisions  of  the  statute,  gives  a  right  to 
the  possession  of  the  vein  to  the  same  length  as  if 
discovered  from  the  surface,  and  that  a  location  on 
the  surface  is-  not  essential  to  a  continuance  of  that 
right.  We  do  not  mean  to  hold  that  such  right  of 
possession  can  be  maintained  without  compliance 
with  the  provisions  of  the  local  statutes  in  reference 
to  the  record  of  the  claim,  or  without  posting  in  some 
suitable  place,  conveniently  near  to  the  place  of  dis- 
covery, a  proper  notice  of  the  extent  of  the  claim — 
in  other  words,  without  any  practical  location.  For 
in  this  case  notice  was  posted  at  the  mouth  of  the 
tunnel  and  no  more  suitable  place  can  be  suggested, 
and  a  proper  notice  was  put  on  record  in  the  office 
named  in  the  statute.*" 

Mr.  Morrison,  in  the  fourteenth  edition*^  of  his  work 
on  ** Mining  Rights,"  seems  to  think  that  this  rule  has 
been  repudiated  by  the  decision  of  the  supreme  court 
of  the  United  States  in  Creede  &  Cripple  Creek  M.  & 
M.  Co.  V.  Uinta  M.  &  M.  Co.,''  and  states  the  law  to  be 
that  there  must  be  a  marking  on  the  surface.  While 
we  concur  with  Mr.  Morrison  that  this  should  be  the 
rule,  we  are  unable  to  agree  that  the  court  intended  in 
its  later  decision  to  recede  from  its  position  in  Camp- 
bell V.  Ellett.  Mr.  Costigan  agrees  as  to  this.*^  Ob- 
viously, if  the  locator  desires  to  secure  a  patent,  he  will 

40  Campbell  v.  Ellet,  167  U.  S.  118,  119,  17  Sup.  Ct.  Rep.  765,  42 
L.  ed.  102,  18  Morr.  Min,  Rep.  669. 

41  Page   291. 

42  196  U.  S.  337,  25  Sup.  Ct.  Rep.  266,  49  L.  ed.  501. 

43  Costigan's  Mining  Law,  p.  241. 


1111    WITHDRAWAL  OF  SURFACE  FROM  EXPLORATION.    §  483 

be  compelled  to  make  a  surface  location.  But  lie  is  not 
called  upon  to  apply  for  a  patent. 

With  this  statement  of  the  law  as  it  is  found  in  the 
above  excerpt  from  the  opinion  of  the  supreme  court 
of  the  United  States  there  are  suggested  several  im- 
portant inquiries  which  remain  to  vex  the  courts  and 
harass  the  miner.  We  will  i)rosent  some  of  these  for 
consideration  in  a  subsequent  section.''* 

A  discovery  may  be  made  in  any  ordinary  tunnel  not 
located  under  the  tunnel  laws.  To  complete  his  in- 
itiatory rights,  however,  the  locator  must  in  such  case 
make  a  surface  location  the  same  as  in  cases  of  ordi- 
nary surface  discovery."^  It  is  only  when  the  tunnel- 
site  has  been  properly  located  and  claimed  under  the 
tunnel  laws  that  the  vein  discovered  in  the  tunnel  need 
not  be  located  at  the  surface. 

y 

§  483.  To  what  extent  does  the  inception  of  a  tun- 
nel right  and  its  perpetuation  by  prosecuting  work 
with  reasonable  diligence  operate  as  a  withdrawal  of 
the  surface  from  exploration  by  others? — It  seems  to 
be  assumed  by  many,  if  not  all,  of  the  courts  that  a 

<*  Tost,  §  491, 

The  state  of  Nevada  has  endeavored  to  avoid  the  dangers  flowing 
from  the  lack  of  surface  marking,  and  has  passed  an  act  which  provides 
that  claims  upon  blind  veins  or  lodes  discovered  in  the  tunnel  shall 
be  located  upon  the  surface  and  held  in  like  manner  as  other  lode 
claims  (Nev.  Comp.  Laws,  1900,  §  229;  Rev.  Laws  1912,  §  2443).  In 
the  second  edition  of  this  work  the  author  expressed  the  view  that  this 
legisl'  tion  was  subject  to  the  criticism  that  if  under  the  federal  law 
no  surface  marking  was  required,  the  state  could  not  insist  upon  that 
requirement.  However,  the  supreme  court  of  the  United  States  sub- 
sequently decided  that  tunnel  locations  were  subject  to  local  regulations 
and  state  legislation.  (Creede  &  Cripple  Creek  M.  Co.  v.  Uinta  T,  M.  & 
M.  Co.,  196  U.  S.  337,  355,  25  Sup.  Ct.  Rep.  266,  49  L.  ed.  501),  and 
probably  the  Nevada  statute  will  be  upheld  as  an  exercise  by  the  state 
of  its  power  to  regulate  tunnel  locations  and   rights   flowing  therefrom. 

45  Brewster  v.  Shoemaker,  28  Colo.   176,   63  Pac.  308,  309. 


§  484         RIGHTS  ACCRUING  TO  THE  TUNNEL  PROPRIETOR.  1112 

tunnel  location  once  perfected  in  accordance  with  the 
departmental  regulations  has  the  effect  of  withdraw- 
ing from  the  body  of  the  public  domain  a  certain  super- 
ficial area,  within  which,  so  long  as  work  in  the  tunnel 
is  prosecuted  with  reasonable  diligence,  surface  ex- 
ploration is  practically  inhibited,  or  at  least  the  pros- 
pector within  that  area  locates  at  his  peril. 

We  find  that  this  question,  with  others  incidentally 
involved,  has  been  before  the  courts  of  Colorado,  Mon- 
tana, and  Idaho,  the  federal  courts  in  the  eighth  cir- 
cuit, and  the  supreme  court  of  the  United  States.  Or- 
dinarily, a  decision  by  the  latter  tribunal  so  forecloses 
the  question  decided  that  further  discussion  is  both 
unnecessary  and  unwise.  However,  there  are  still  so 
many  questions  undecided  arising  out  of  tunnel  loca- 
tions and  the  location  of  blind  veins  based  on  dis- 
coveries in  the  tunnel,  that  we  are  impressed  with  the 
expediency  of  taking  up  the  subject  outlined  in  the 
title  to  this  section  and  dealing  with  it  from  an  histori- 
cal or  evolutionary  point  of  view. 

§  484.  The  Colorado  rule.— The  case  of  Corning 
Tunnel  Co.  v.  Pell*®  involved  a  controversy  between  the 
tunnel  company  locating  a  tunnel  in  September,  1872, 
and  the  locators  of  the  Slide  lode,  located  August  17, 
1875. 

The  Slide  lode  was  fifteen  hundred  feet  in  length, 
and  crossed  the  center  line  of  the  tunnel-site  nearly  at 
right  angles.  The  discovery  shaft  was  near,  but  not 
on,  the  center  line,  being  about  fifty-five  feet  there- 
from. The  lode  had  not  been  reached  or  cut  by  the 
tunnel. 

The  tunnel-site  as  claimed  described  a  parallelo- 
gram, three  thousand  by  fifteen  hundred  feet.     The 

46  4  Colo.  507,  14  Morr.  Min.  Kep.  612. 


1113  THE  COLORADO  RULE.  §  484 

tunnel  had  been  worked  with  reasonable  diligence,  and 
had  not  been  abandoned.  The  owners  of  the  Slide  lode 
applied  for  a  patent,  and  the  tunnel  company  advorsed. 
The  action  was  in  support  of  the  adverse  claim  and  to 
tr>^  the  title  to  the  Slide  lode. 

It  was  contended  by  the  tunnel  claimant  that  the 
"line  of  the  tunnel"  meant  the  entire  width  and 
length  of  the  sui'\'eyed  tunnel-site, — that  is,  fifteen 
hundred  by  three  thousand  feet;  that  within  these 
limits,  after  the  commencement  of  the  tunnel  and  while 
it  is  being  prosecuted  with  diligence,  no  valid  location 
could  be  made  of  a  vein  or  lode  not  appearing  upon  the 
surface. 

The  supreme  court  of  Colorado  held: — 

(1)  That  there  was  no  law  authorizing  a  tunnel  loca- 
tion of  any  such  dimensions;  that  the  line  of  tunnel 
was  the  width  marked  by  the  exterior  lines  or  sides  of 
the  tunnel; 

(2)  That  the  result  contended  for  by  the  tunnel 
claimant  forbids  its  adoption,  unless  the  language 
clearly  indicates  such  to  have  been  the  legislative  in- 
tent. In  this  case,  the  tunnel-site  location  would  with- 
draw from  the  exploration  of  prospectors  over  one 
hundred  acres  of  mineral  lands.  A  very  limited  num- 
ber of  tunnel  locations  would  cover  and  monopolize,  in 
most  cases,  an  entire  mining  district,  giving  to  a  few 
tunnel  owners  all  its  mines,  not  upon  the  condition  of 
discovery  and  development,  but  upon  the  easy  condi- 
tion of  a  commencement  of  the  work  on  the  tunnel  and 
its  prosecution  with  reasonable  diligence.  The  policy 
of  the  general  government  has  been  to  prevent  mo- 
nopoly of  its  mineral  lands,  or  its  ownership  in  large 
tracts.  But  for  the  existence  of  this  policy,  there  was 
but  little  or  no  reason  for  an  abandonment  of  its  sys- 


§  484         RIGHTS  ACCRUING  TO  THE  TUNNEL  PROPRIETOR.  1114 

tern  of  surveys  and  pre-emptions  applicable  to  agricul- 
tural lands,  and  the  adoption  as  to  its  mineral  lands 
of  a  system  that,  as  to  surface  claims  at  least,  limits 
mining  locations  to  an  inconsiderable  acreage  append- 
ant to  a  discovered  lode.  The  construction  claimed  is 
in  contravention  of  this  policy;  nor  can  it  be  justified 
by  the  language  of  the  section; 

(3)  No  right  of  possession  of  a  lode  inures  to  the 
tunnel  claimant  until  it  is  discovered  in  the  tunnel; 

(4)  The  Slide  lode,  not  having  been  discovered  in 
the  tunnel  by  the  tunnel  proprietor,  and  the  "loca- 
tion,"— i.  e.,  discovery, — not  being  on  the  line  thereof, 
the  tunnel  proprietor  had  no  right  to  the  lode. 

This  is  a  clear  enunciation  of  the  rule,  that  the  mere 
location  of  the  tunnel-site  does  not  withdraw  the  sur- 
face adjacent  to  the  tunnel  line  from  exploration  and 
location;  that  the  tunnel  is  only  a  means  of  discovery, 
and  that  priority  of  discovery  establishes  a  priority 
of  right. 

Fifteen  years  later  the  same  tunnel-site  was  again 
brought  to  the  attention  of  the  same  court,  in  the  case 
of  Ellet  V.  Campbell,*^  upon  the  following  state  of 
facts: — 

The  tunnel  claimant,  on  February  3,  1875,  discov- 
ered in  the  tunnel,  on  the  line  thereof,  five  hundred 
and  ninety-four  feet  from  the  face,  the  Bonanza  lode, 
and  located  it  by  posting  a  notice  at  the  mouth  of  the 
tunnel  and  recording  a  similar  notice  as  described  in 
a  preceding  section.*^ 

The  Bonanza  lode  did  not  appear  upon  the  surface 
of  the  ground,  and  was  not  known  to  exist  prior  to  dis- 
covery in  the  tunnel.     It  was  not  staked  on  the  sur- 

47  18  Colo.  510,  33  Pac.  521,  524. 

48  §482. 


1115  THE  MONTANA  RULE.  §  485 

face.  No  discovery  shaft  was  sunk,  or  work  done  upon 
the  surface.  The  annual  work  on  the  lode  was  regu- 
larly performed.  On  July  10,  1886,  Campljell,  the  de- 
fendant, and  another  made  a  location  of  the  J.  L. 
Sanderson  lode,  which  was  identical  with  the  Bonanza 
lode.  Their  location  was  based  upon  a  discovery  made 
in  a  ''cut,"  two  hundred  feet  to  the  east  of  the  east 
line  of  the  bore  of  the  tunnel.  At  the  time  of  marking 
the  Sanderson  location,  the  locators  knew  of  the  dis- 
cover}' theretofore  made  in  the  tunnel.  The  locators 
of  the  Sanderson  lode  applied  for  a  patent,  the  tunnel 
claimant  adversed,  and  hence  the  suit. 

Upon  this  state  of  facts,  the  supreme  court  of  Colo- 
rado held  that  having  made  a  discoveiy  in  the  tunnel, 
the  discoverer  is  not  bound  to  make  another  discovery 
and  location  of  the  lode  from  the  surface,  in  order  to 
be  protected  against  a  subsequent  surface  locator  of 
the  same  lode. 

Having  determined  that  it  was  not  necessary  to  mark 
the  location  on  the  surface,  and  that  the  manner  of 
location  heretofore  described  was  sufficient,  the  ap- 
propriation of  the  lode  having  been  perpetuated  by 
continued  performance  of  the  annual  work,  no  other 
conclusion  could  possibly  have  been  reached  by  the 
court  than  the  one  announced. 

As  heretofore  noted,  the  decision  of  the  supreme 
court  of  Colorado  was  affirmed  by  the  supreme  court 
of  the  United  States.*' 

§  485.  The  Montana  rule. — At  the  time  the  cases 
considered  by  the  supreme  court  of  Montana  arose, 
there  was  a  state  statute,  which  had  been  enacted  in 

49  Campbell  v.  Ellet,  167  U.  S.  118,  119,  17  Sup.  Ct.  Rep.  765,  42 
L.  ed.  1021,  18  Morr.  Min.  Rep.  669. 


§  485         RIGHTS  ACCRUING  TO  THE  TUNNEL  PROPRIETOR.  1116 

1872,  and  which  contained  among  others  the  following 

provisions : — 

Any  person  or  persons  pre-empting  any  tunnel 
have  the  exclusive  right  to  three  hundred  feet  on 
each  side  from  the  center  of  said  tunnel,  on  any  and 
all  lodes  that  he  or  they  may  discover  in  the  course 
of  said  tunnel. 

In  June,  1887,  the  Hope  Mining  Company  located  the 
Jubilee  tunnel  in  Deer  Lodge  county,  Montana.  In 
the  following  December,  Brown  located  a  quartz  claim 
within  three  hundred  feet  of  the  line  of  the  tunnel, 
basing  his  location  upon  a  discovery  in  a  tunnel,  and 
was  engaged  in  extracting  ore  therefrom  when  the 
Hope  Mining  Company  sought  an  injunction  prevent- 
ing further  mining  operations  by  the  quartz  claimant. 
The  ledge  in  controversy  had  not  been  discovered  in 
the  Jubilee  tunnel,  although  the  complaint  alleged  that 
it  appeared  to  cross  it. 

The  supreme  court  of  Montana  held : — 

(1)  That  a  tunnel  claimant  upon  discovering  a  vein 
or  lode  in  his  tunnel  will  be  entitled  as  a  matter  of 
right  to  the  vein  or  lode  for  fifteen  hundred  feet  in 
length  along  its  course,  and  to  the  extent  of  three  hun- 
dred feet  on  each  side  thereof  from  the  middle  of  the 
vein; 

(2)  Brown's  location  is  valid,  though  liable  to  be 
divested  by  the  subsequent  discovery  of  the  same  vein 
in  the  Hope  tunnel,  if  such  location  is  found  to  be 
within  three  hundred  feet  from  the  middle,  and  fifteen 
hundred  feet  from  the  point  of,  the  tunnel  discovery, 
measured  along  the  vein.  That  third  parties  have  the 
right  to  locate  any  veins  within  three  hundred  feet  of 
the  line  of  the  tunnel,  which  is  held  to  be  the  width 
of  the  sides  thereof,  but  such  locations  so  made  are  at 


1117  THE  MONTANA  RULE.  §  485 

the  risk  of  the  locators;  for  upon  the  discovery  of  the 
vein  or  lode  in  the  tunnel  all  locations  made  subsequent 
to  its  commencement  become  invalid  if  they  are  within 
the  distances  above  specified. 

The  court  also  adds  the  following: — 

As  a  matter  of  course,  veins  or  lodes  discovered 
from  the  surface,  or  previously  known  to  exist,  are 
not  affected  by  the  right  of  the  tunnel  claimant, 
which  we  may  here  remark  to  he  most  ample  and 
sweeping. 

The  injunction  was  denied." 

It  is  extremely  difficult  to  ascertain  precisely  what 
the  court  meant  by  the  language  used  in  the  quoted 
paragraph.  If  a  discover}^  from  the  surface  made 
prior  to  discovery  in  the  tunnel,  but  after  the  perfec- 
tion of  the  tunnel  location,  would  take  precedence  over 
the  subsequent  tunnel  discovery,  it  is  difficult  to  under- 
stand the  closing  remark,  that  the  tunnel  proprietor's 
rights  are  most  ample  and  sweeping. 

Atiother  case  between  the  same  parties,  involving  the 
same  relative  rights,  came  before  the  same  court  a  few 
years  later,  wherein  it  appeared  that  Brown  had  ap- 
plied for  a  patent  for  his  location  made  as  indicated  in 
the  previous  case.  The  tunnel  company  adversed,  and 
the  action  was  to  determine  the  adverse  claim. 

The  court  held,  upon  the  showing  made,  that  the  ap- 
plicant for  patent  ought  to  be  restrained  from  prose- 
cuting his  proceedings  while  the  tunnel  proprietor  is 
prosecuting  his  tunnel  as  required  by  law,  and  until  it 
is  demonstrated  that  such  vein,  or  lode,  will  not  be  dis- 
covered in  the  tunnel,  or  until  such  tunnel  rights  are 
abandoned  by  failure  to  prosecute  the  tunnel  as  pro- 
vided by  law." 

60  Hope  M.  Co,  V.  Brown,  7  Mont.  550,  19  Pac.  218,  221. 

61  Hope  M.  Co.  V.  Brown,  11  Mont.  370,  28  Pac.  732,  735. 


§  486         RIGHTS  ACCRUING  TO  THE  TUNNEL  PROPRIETOR.  1118 

It  must  be  conceded  that  the  views  of  the  supreme 
court  of  Montana  tend  to  support  the  doctrine  that  a 
perfected  tunnel-site  practically  withdraws  the  surface 
to  the  extent  of  fifteen  hundred  feet  on  each  side  of  the 
line  of  the  tunnel,  and  that  the  withdrawal  remains  in 
force  until  it  is  either  demonstrated  that  a  given  lode 
will  not  Be  cut  in  the  tunnel  or  the  tunnel-site  is  aban- 
doned. 

§  486.  The  Idaho  rule. — In  the  case  of  Back  v. 
Sierra  Nevada  Cons.  M.  Co."  the  following  state  of 
facts  appeared: — 

The  complaint  alleged  in  substance  that  Back  owned 
the  Pilgrim  tunnel,  located  April  5,  1886.  On  April  6, 
1886,  defendant's  grantors  entered  upon  the  line  of  the 
tunnel  at  a  point  where  post  number  nine  on  said  line 
was  planted.  They  had  full  knowledge  of  the  exist- 
ence of  the  post  and  the  location  of  the  tunnel.  They 
commenced  to  prospect  for  minerals,  and  at  a  depth 
of  twelve  feet  discovered  a  ledge. 

This  ledge  was  blind,  and  would  have  been  inter- 
sected by  the  tunnel  continued  on  the  location  line 
thereof.  Defendant's  grantors  located  and  recorded  a 
mining  claim  called  the  Sierra  Nevada,  and  afterward 
made  application  for  patent.  Back  filed  an  adverse 
claim,  and  the  suit  was  brought  to  determine  the  rights 
of  the  parties.  A  demurrer  to  the  complaint  was  sus- 
tained. Judgment  passed  for  defendant  on  failure  to 
answer.  The  appeal  was  prosecuted  from  the  judg- 
ment. 

It  was  held  by  the  supreme  court  of  Idaho,  reversing 
the  judgment: — 

(1)  That  a  tunnel  location  is  a  ''mining  claim,"  and 
the  locator  may  protect  his  rights  by  adversing  appli- 

S2  2  Idaho,  386,  17  Pac.  83,  85. 


1119 


JUDGE  HALLETT'S  VIEWS. 


§487 


cation  for  patent  to  ledges  asserted  to  liave  been  lo- 
cated on  the  line  of  said  tunnel  subsequent  to  the  tun- 
nel location; 

(2)  It  is  evident  that,  in  enacting  section  twenty- 
three  hundred  and  twenty-three  of  the  Revised  Stat- 
utes, congress  intended  to  withdraw  from  exploration 
for  lodes  not  appearing  upon  the  surface  so  much  of 
the  public  domain  as  lay  upon  the  line  of  the  tunnel; 

(3)  The  tunnel  claimant  has  a  right  to  the  posses- 
sion, for  prospecting  purposes,  of  the  area  in  dispute, 
and  to  show  that  the  respondent's  location  was  upon 
the  line  of  his  tunnel. 

No  attempt  is  made  to  define  what  is  meant  by  the 
line  of  the  tunnel. 


tSca^e 


Figure  42. 


§  487.  Judge  Hallett's  views.— The  tunnel  law 
came  before  Judge  Hallett  in  the  case  of  Rico-Aspen 
Cons.  M.  Co.  V.  Enterprise  M.  Co."  His  decision  is 
accompanied  by  a  diagram,  which  we  herewith  re- 
produce as  Figure  42. 


88  53  Fed.  321,  323. 


§  487         RIGHTS  ACCRUING  TO  THE  TUNNEL  PROPRIETOR.  1120 

The  facts  were  substantially  as  follows: — 
The  Rico-Aspen  company  asserted  title  to  three  min- 
ing claims,— the  Vestal,  located  in  1879;  Contention, 
January  1,  1888;  and  Compromise,  November  18,  1889. 
The  Hiawatha  was  not  neeessarily  involved  in  the  liti- 
gation, although  it  may  be  noted  that  its  location  was 
junior  in  point  of  time  to  the  inception  of  the  tunnel 
right. 

The  Enterprise  Mining  Company  perfected  its  loca- 
tion of  the  Group  tunnel  in  July,  1887;  and  in  June, 
1892,  discovered  and  located  the  Jumbo  II  claim,  de- 
lineating it  upon  the  surface  as  indicated  on  the  dia- 
gram. 

Said  Judge  Hallett,  after  quoting  the  language  of 
section  twenty-three  hundred  and  twenty-three  of  the 
Revised  Statutes: — 

Clearly  enough,  this  is  a  grant  of  lodes  and  veins 
on  the  line  of  the  tunnel,  and  the  only  difficulty  is 
in  ascertaining  the  extent  of  the  grant.  The  su- 
preme court  of  this  state  (referring  to  Corning  Tun- 
nel Co.  V.  Pell)  interprets  the  act  as  giving  only  so 
much  of  such  veins  and  lodes  as  may  be  in  the  tunnel 
itself.  But  this  seems  to  reduce  the  grant  to  a  point 
of  insignificance  which  deprives  the  act  of  all  force 
and  meaning.  Certainly,  no  one  would  be  at  the 
trouble  and  expense  of  driving  a  tunnel  through  a 
mountain  for  such  small  segments  of  lodes  or  veins 
as  may  be  in  the  bore  of  the  tunnel.  On  the  other 
hand,  respondents  contend  that  the  grant  is  of  the 
length  of  a  surface  location  in  any  direction  from 
the  line  of  the  tunnel,  and  as  stated,  almost  the  en- 
tire length  of  the  Jumbo  II  is  in  a  southwesterly 
direction  from  that  line.  Under  this  construction, 
the  location  of  a  tunnel,  followed  by  some  lazy  per- 
functory work  twice  in  the  year,  will  have  the  effect 
to  withdraw  from  the  public  domain  a  tract  three 
thousand  feet  square,  or  something  more  than  a  half 
section  of  land;  and  this  in  the  face  of  the  earlier 


1121  OTHER  JUDICLVL   VIEWS.  §  488 

declaration  of  the  statute,  that  "no  location  of  a 
mining  claim  shall  be  made  until  the  discover\^  of 
the  vein,  or  lode,  within  the  limits  of  the  claim 
located,"  This  view  is  so  far  inconsistent  with  the 
general  policy  of  the  law  which  forbids  the  granting 
of  large  areas  of  valuable  mineral  lands  to  one  per- 
son or  company  that  it  seems  impossible  to  accept 
it. 

The  conclusions  reached  by  Judge  Hallett  may  be 
thus  summed  up: — 

(1)  The  length  of  a  location  made  upon  a  lode  dis- 
covered in  a  tunnel  is  not  fixed  by  the  act  of  congress, 
but  is  left  to  local  regulations; 

(2)  Without  local  regulation  as  to  length  of  a  claim 
founded  on  a  discovery  in  a  tunnel,  nothing  would  pass 
but  the  line  of  the  tunnel  itself; 

(3)  The  Colorado  statute  of  1861"  was  then  in  force 
and  secured  to  the  tunnel  locator  two  hundred  and 
fifty  feet  each  way  from  the  tunnel,  on  all  lodes  dis- 
covered within  the  tunnel.  As  to  the  two  hundred  and 
fifty  feet,  the  tunnel  proprietor  becomes  the  owner  of 
the  ledge,  its  location  dating  back  to  the  inception  of 
the  tunnel  right;" 

(4)  As  to  the  Vestal,  owing  to  the  priority  of  its 
location,  decree  passed  for  complainant.  As  to  the 
Compromise  and  Contention,  their  location  should,  to 
the  extent  sanctioned  by  the  state  law,  yield  to  the 
rights  of  the  Jumbo  II,  which  related  back  to  the  in- 
ception of  the  tunnel  right. 

§  488.  The  doctrine  announced  by  the  circuit  court 
of  appeals,  eighth  circuit. — An  appeal  was  taken  from 
Judge  Hallett 's  decree  in  the  Rico-Aspen-Enterprise 

64  Mills'  Annot.  Stats.,  §  3141. 

65  This  statute  has  since  been  repealed,  Stats.   1911,  p.  515. 

Lindley  on  M. — 71 


§  488         RIGHTS  ACCRUING  TO  THE  TUNNEL  PROPRIETOR.  1122 

case,  and  tlie  appellate  court  declined  to  adopt  his 
views/®  When  the  case  was  before  Judge  Hallett,  the 
facts  as  they  are  recited  in  the  opinion  fixed  1879  as 
the  date  of  the  Vestal  location,  prior  in  point  of  time 
to  the  location  of  the  Group  tunnel.  For  this  reason 
it  received  but  little  attention,  the  reasoning  of  the 
judge  being  particularly  addressed  to  the  Contention 
and  Compromise,  which  were  junior  in  point  of  time 
to  the  tunnel  location,  although  senior  with  reference 
to  the  tunnel  discovery. 

The  case  as  presented  to  the  appellate  court  seems 
to  be  somewhat  different,  the  controversy  apparently 
centering  within  the  conflict  area  between  the  Vestal 
and  Jumbo  II,  and  the  record  seems  to  give  to  the 
former  a  date  of  location,  junior,  in  point  of  time,  to 
the  inception  of  the  tunnel  right. 

The  principles  involved,  however,  are,  of  course,  the 
same. 

The  questions  involved  are  presented  by  the  appel- 
late court  in  the  following  form: — 

(1)  Are  the  owners  of  a  valid  tunnel  mining  claim 
under  section  twenty-three  hundred  and  twenty-three 
of  the  Revised  Statutes,  who  have  discovered  a  blind 
vein  in  their  tunnel  and  have  duly  located  and  claimed 
it,  entitled,  as  against  the  owners  of  a  lode  mining 
claim  located  from  the  surface  after  the  location  of  the 
tunnel-site,  but  before  the  discovery  of  the  vein  in  the 
tunnel,  to  the  possession  of  the  vein  or  lode  thus  dis- 
covered, when  such  vein  was  not  known  to  exist  prior 
to  the  location  of  the  tunnel,  but  was  first  discovered 
in  another  lode  mining  claim  before  its  discovery  in  the 
tunnel? 

66  Enterprise  M.  Co.  v.  Rico-Aspen  Cons.  M.  Co.,  66  Fed,  201,  206, 
13  C.  C.  A.  390. 


1123  OTHER   JUDICIAL   VIEWS.  §  488 

(2)  If  tlic  owners  of  a  tunnel  mining  claim  are  en- 
titled to  the  possession  of  any  portion  of  such  a  vein; 
to  what  extent  are  they  entitled  to  it? 

Another  question  was  also  presented  and  decided 
which  refers  to  the  effect  of  a  patent  issued  upon  the 
junior  surface  location  where  the  tunnel  claimant  failed 
to  adverse.  The  discussion  of  this  branch  of  the  case 
will  be  deferred  until  we  reach,  in  another  portion  of 
the  work,  the  subject  of  patent  proceedings  and  the 
legal  effect  of  a  patent  when  issued." 

As  preliminary  to  a  discussion  of  the  principles  in- 
volved, the  court  announced  as  follows: — 

There  is  no  tenable  middle  ground  under  this  sec- 
tion between  a  holding  that  the  diligent  owner  of  a 
tunnel  is  entitled  to  the  possession  of  all  blind  veins 
he  discovers  in  his  tunnel  to  the  same  extent  along 
the  veins  as  if  he  had  discovered  them  at  the  surface, 
and  a  holding  that  by  the  discoveries  and  locations 
of  others,  subsequent  to  the  commencement  of  his 
tunnel  and  before  it  reaches  the  veins  at  all,  he 
may  be  deprived  of  every  portion  of  them,  except 
possibly  the  small  segments  within  the  bore  of  the 
tunnel. 

The  conclusions  reached  by  the  court  may  be  thus 
stated : — 

(1)  The  location  of  a  tunnel-site,  followed  by  the 
prosecution  of  work  thereon  with  reasonable  diligence, 
gives  to  the  tunnel  locator  an  inchoate  right  to  all 
hitherto  unknown  or  undiscovered  veins  which  cross 
the  line  of  the  tunnel  and  are  discoverable  therein; 

(2)  That  upon  the  discovery  in  the  tunnel,  the  tunnel 
locator  will  be  entitled  to  fifteen  hundred  feet  along  the 
length  of  the  vein,  computed  in  either  direction  from 
his  tunnel  discovery,  and  that  this  right  cannot  be  im- 

6T  Post,  §  725. 


§  488        RIGHTS  ACCRUING  TO  THE  TUNNEL  PROPRIETOR.  1124 

paired  by  a  discovery  and  location  from  the  surface, 
junior  in  point  of  time  to  the  inception  of  the  tunnel 
'right; 

(3)  The  state  statute  of  Colorado,  fixing  the  limit  in 
length  at  two  hundred  and  fifty  feet  on  each  side  of  the 
tunnel  line,  is  superseded  by  the  act  of  congress;^* 

(4)  In  determining  what  length  on  the  vein  is  al- 
lowed to  the  tunnel  discoverer,  the  court  resorts  to  sec- 
tion twenty-three  hundred  and  twenty  of  the  Eevised 
Statutes,  but  decides  that  such  section  performs  no 
other  function  in  determining  the  rights  of  the  tun- 
nel discoverers. 

The  court  also  holds  that  the  inchoate  right  given 
to  the  tunnel  locator  only  extends  to  veins  that  strike 
the  line  of  the  tunnel  and  are  discovered  in  the  tun- 
nel. Others  may  discover  and  hold  all  veins  within 
fifteen  hundred  feet  of  the  line  of  the  tunnel  that  do 
not  strike  or  cross  its  lines,  and  all  that  do  strike  it 
that  are  not  discovered  in  it. 

The  reasoning  applied  by  the  court  which,  in  its 
judgment,  justified  the  results  reached  may  be  thus 
epitomized: — 

(A)  Section  twenty- three  hundred  and  twenty-three 
construes  itself,  and  it  is  unnecessary  to  resort  to  pub- 
lic policy  in  aid  of  its  interpretation; 

(B)  If  the  question  of  public  policy  is  to  be  resorted 
to,  the  rights  guaranteed  to  the  tunnel  locators  are  in 
accord  with  such  policy,  which  is  to  encourage  the  dis- 
covery and  development  of  the  mineral  resources  of  the 
country; 

(C)  The  work  of  driving  tunnels  thousands  of  feet 
into  the  side  of  a  mountain  for  the  purpose  of  discover- 
ing a  vein  or  lode  that  is  not  known  to  exist  at  all  is 

»«  This  has  since  been  specifically  repealed. 


1125   TUNNEL  LOCATIONS  BEFORE  U.  S.  SUPREME  COURT.   §  489 

an  extremely  hazardous  ar.d  expensive  undertaking; 
that  this  is  common  knowledge,  and  congress  must  be 
taken  to  have  had  this  knowledge  when  they  enacted 
the  law.  They  must  have  known  that  such  a  hazard- 
ous enterprise  was  not  likely  to  be  undertaken  unless 
rewards  commensurate  with  the  risk  and  expense  were 
offered. 

It  is  to  be  added,  by  way  of  a  sidelight  on  this  de- 
cision, that  the  discovery  on  which  the  Vestal  location 
was  based  was  not  upon  the  vein  which  was  discovered 
in  the  tunnel.  The  right  of  the  tunnel  locator  to  the 
vein  discovered  in  the  tunnel,  in  so  far  as  it  was  found 
within  the  Vestal  location,  was  also  defended  on  the 
ground  that  it  was  a  cross-lode,  and  that  under  the  rule 
then  recognized  by  the  state  courts  of  last  resort  in 
Colorado,  which  we  will  discuss  fully  in  a  subsequent 
chapter,  owners  of  cross-lodes  might  follow  their  vein 
into,  and  underneath,  even  a  prior  location. 

§  489.  Tunnel  locations  before  the  supreme  court  of 
the  United  States. — The  case  of  Glacier  Mountain 
Silver  Mining  Company  v.  Willis''^  was  an  action  of 
ejectment,  wherein  the  plaintiff  sought  to  recover  pos- 
session of  the  Silver  Gate  tunnel  claim,  located  in  1865, 
alleged  to  be  five  thousand  feet  long  and  five  hundred 
feet  wide,  described  by  metes  and  bounds,  which  was 
alleged  to  embrace  many  valuable  lodes  or  veins  which 
had  been  discovered,  worked,  and  mined  by  the  plain- 
tiff and  his  grantors.  Possession  and  payment  of  taxes 
for  a  period  in  excess  of  the  statute  of  limitations  pre- 
scribed by  the  laws  of  Colorado  were  averred,  together 
with  a  general  allegation  of  ownership  of  the  tunnel 
claim  described.  The  ouster  alleged  was  (1)  an  entry 
by  defendants  upon  the  premises  and  into  the  tunnel, 

69  127  U.  S.  471,  481,  8  Sup.  Ct.  Rep.  1214,  32  L.  ed.  172. 


§  489         RIGHTS  ACCRUING  TO  THE  TUNNEL  PROPRIETOR.  1126 

claiming  said  tunnel  as  the  War  Eagle,  and  (2)  the  lo- 
cation by  defendants  of  the  Tempest  lode  claim  across 
the  tunnel,  claiming  a  discovery  in  the  tunnel  of  such 
lode. 

A  special  demurrer  was  interposed  upon  the  ground, 
among  others,  that  the  claim  of  plaintiff  to  a  strip  of 
ground  five  thousand  feet  in  length  by  five  hundred 
feet  in  width  as  a  tunnel-site  is  unwarranted  and  un- 
precedented, and  was  not,  at  the  date  of  said  pretended 
location,  nor  at  any  subsequent  time,  authorized  by  any 
local,  state,  or  congressional  law. 

The  court  below  sustained  the  demurrer.  The  su- 
preme court  of  the  United  States,  in  reversing  the  judg- 
ment, held: — 

(1)  That  the  claim  for  five  thousand  feet  in  length  ^ 
was  void  only  as  to  the  excess  over  three  thousand  feet; 

(2)  The  tunnel  location  having  been  made  prior  to 
the  passage  of  the  act  of  May  10,  1872,  the  rights  flow- 
ing therefrom  are  to  be  determined  under  the  local 
rules  and  customs  in  force  at  the  time  the  location  was 
made. 

It  is  manifest  that  this  decision  sheds  no  light  upon 
the  subject.  We  refer  to  it  for  the  reason  that  in  sev- 
eral of  the  decisions  heretofore  cited  it  was  stated  that 
the  conclusions  there  reached  were  not  opposed  to  the 
doctrine  of  the  Glacier  Mountain-Willis  case.  This  is 
quite  true,  for  the  simple  reason  that  the  questions 
which  we  are  now  considering  were  not  there  involved, 
discussed,  or  decided.  But  they  were  subsequently  in- 
volved and  decided  by  the  supreme  court  of  the  United 
States  in  the  case  of  Enterprise  M.  Co.  v.  Rico-Aspen 
M.  Co.,®°  and  the  doctrine  finally  settled  to  the  follow- 
ing etfect,  as  stated  in  the  syllabus  to  the  opinion: — 

60  167  U.  S.  108,  17  Sup.  a.  Rep.  762,  42  L.  ed.  96. 


1127  OPINIONS   OF    LAND   DEPARTMENT.  §  490 

The  dear  import  of  the  language  of  Kev.  Stats., 
sec.  2320,  is  to  give  to  a  tunnel  owner  discovering  a 
vein  in  the  tunnel  a  right  to  appropriate  fifteen  hun- 
dred feet  in  length  on  that  vein;  which  right  arises 
upon  the  discovery  of  the  vein  in  the  tunnel;  dates 
by  relation  back  to  the  time  of  the  location  of  the 
tunnel-site;  may  be  exercised  by  locating  the  claim 
the  full  length  of  fifteen  hundred  feet  on  either  side 
of  the  tunnel  or  in  such  proportion  thereof  on  either 
side  as  the  locator  may  desire;  and  is  not  destroyed 
or  impaired  by  the  failure  of  the  owner  of  the  tunnel 
to  adverse  a  previous  application  for  a  surface  patent 
before  the  discovery  of  the  vein. 

§  490.  Opinions  of  the  land  department.— We  note 
the  following  views  expressed  by  the  laud  depart- 
ment : — 

(1)  A  claim  under  a  tunnel  location  is  a  mining 
claim,  and  the  locator  should  adverse  a  junior  applica- 
tion for  patent  for  a  lode  within  its  claimed  limits;" 

(2)  Prospecting  for  lodes  not  previously  known  to 
exist  is  prohibited  on  the  line  of  the  tunnel  (i.  e.,  the 
width /6f  the  tunnel  bore)  while  work  on  the  tunnel  is 
being  prosecuted  with  reasonable  diligence;^' 

(3)  In  no  case  can  a  tunnel  proprietor  record  a  claim 
so  as  to  absorb  the  actual  or  constructive  possession  of 
other  parties,  on  a  lode  which  had  been  discovered  and 
claimed  outside  the  line  of  the  tunnel  before  the  dis- 
covery thereof  in  the  tunnel.®^ 

Gi  Secretary  Kirkwooil,  Bodie  Tunnel  &  M.  Co.  v.  Bechtel  Cons.,  1 
L.   D.   584. 

62  Commissioner  Williamson,  la  re  David  Hunter,  Copp's  Min.  Lands, 

231. 

63  Commissioner  Drummond's  letter  to  Chaffee,  Copp's  Min.  Dec.  144. 
See,  also.  Corning  Tunnel  Co.  v.  Pell,  3  Copp's  L.  O.  130.  We  have 
heretofore  noted  the  decisions  of  this  department  defining  the  line  of  the 
tunnel  to  be  the  width  of  the  bore.     Ante,  §  473. 


§  490a    rights  accruing  to  the  tunnel  proprietor.        1128 

Necessarily,  tliese  views  are  now  obsolete,  in  tlie  liglit 
of  the  rulings  of  the  supreme  court  of  the  United  States 
heretofore  noted. 

§  490a.  Rights  of  junior  tunnel  locator  as  against 
senior  mining  claims  on  the  line  of  the  tunnel.— There 
should  be  little  room  for  the  discussion  of  this  ques- 
tion. No  subsequent  mining  location  of  any  kind  can 
impair  rights  vested  under  prior  locations.  And  yet  it 
has  been  contended  that  one  who  locates  a  tunnel  claim 
has  the  right  to  drive  through  property  covered  by  a 
senior  location.  In  other  words,  it  has  been  claimed 
that  the  grant  of  a  mining  claim  is  accompanied  by  the 
implied  right  of  way  through  it  in  the  interest  of  a 
junior  tunnel  locator,  or  that  state  statutes  may  impose 
such  a  burden  on  prior  claims. 

As  to  these  contentions,  Judge  Lunt,  in  deciding  the 
leading  cross-lode  case  of  Ajax  Gold  Mining  Company 
v.  Calhoun  Gold  Mining  Company,  thus  expressed  his 
views: — 

The  Eevised  Statutes  of  the  United  States  do  not 
give  the  tunnel  locator  any  such  right,  but  negative 
any  such  assumption.  A  patent  to  a  lode  claim 
grants  all  veins  whose  tops,  or  apexes,  are  within  the 
side-lines  of  the  claim,  etc.,  to  the  lode  claim,  whether 
they  are  known  or  not;  hence  no  discovery  of  them 
on  subsequently  located  ground  can  be  made.  There 
may  be  a  vague  notion  that  the  right  to  penetrate  a 
lode  claim  by  a  tunnel  may  have  existed,  and  it  may 
have  been  done  many  times  heretofore  with  or  with- 
out the  permission  of  the  owner,  but  it  is  idle  to  pre- 
tend that  any  such  custom  has  ripened  into  law. 
....  I  do  not  think  the  tunnel  can  penetrate  the 
plaintiff's  claims.^* 

The  supreme  court  of  Colorado,  in  affirming  Judge 
Lunt's  decision,  held  that  under  the  statutes  the  subse- 

64  1  Leg.  AdT.  426,  429. 


1129 


CONFLICTING   CL.UMS. 


490a 


quent  locator  lias  no  riglit  to  penetrate  a  senior  valid 
subsisting  location  underneath  its  surface  boundaries 
extended  downwardly,  except  for  the  purposes  specified 
in  the  mining  laws,  and  that  these  exceptions  do  not 
include  a  right  to  drive  a  tunnel  through  such  a  loca- 
tion for  the  purposes  of  discovery .^^ 

This  rule  received  the  approval  of  the  supreme  court 
of  the  United  States.*'*' 

The  owner  of  a  location  holding  the  apex  of  a  vein 
may  enter  the  land  adjoining  in  the  exercise  of  the 
extralateral  right,  but  in  doing  so  he  must  follow  the 
vein  on  its  downward  course.  He  has  no  right  to  ap- 
proach and  work  the  vein  through  crosscut  tunnels  run 
underneath  such  adjoining  lands.^'^ 

The  supreme  court  of  the  United  States  in  affirming 
this  principle^^  suggests  an  apt  illustration  of  the  effect 
of  the  ruling.     This  we  present  in  figure  42a. 

The  owner  of  the  claim 
containing  the  apex  of 
vein  may  follow  it  on  its 
downward  course  in  the 
plane  of  the  vein  which 
forms  the  hj^othenuse 
of  the  triangle.  He  can- 
not, however,  crosscut 
into  his  neighbor's  territory  to  reach  the  vein  at  a  lower 
level. 

65  Calhoun  G.  M.  Co.  v.  Ajax  G.  M.  Co.,  27  Colo.  1,  83  Am.  St.  Rep. 
17,  59  Pac.  607,  618,  50  L.  R.  A.  209. 

66  Id.,  182  U.  S.  499,  507,  21  Sup.  Ct.  Eep.  885,  45  L.  ed.  1200. 

67  St.  Louis  M.  &  M.  Co.  v.  Montana  M.  Co.,  Ltd.,  113  Fed.  900,  902, 
51  C.  C.  A.  530. 

68  St.  Louis  M.  &  M.  Co.  v.  Montana  M.  Co.,  194  U.  S.  235,  236, 
24  Sup.  Ct.  Rep.  654,  48  L.  ed.  953. 


Figure  42a. 


§  490a    rights  accruing  to  the  tunnel  proprietor.       1130 

As  to  the  validity  of  state  statutes  purporting  to 
grant  a  right  of  way  to  junior  tunnel  locators,  Judge 
Lunt,  in  the  opinion  above  referred  to,  observed,  in 
speaking  of  a  Colorado  statute  which  had  been  held  not 
to  be  in  force,  that  even  if  it  were  in  force  a  grave 
question  arises  whether  a  lode  claim  granted  by  the 
United  States  could  be  burdened  with  such  an  inchoate 
easement  by  a  state  legislature. 

There  is  a  law  now  upon  the  statute  books  of  Col- 
orado which  attempts  to  confer  the  right  upon  a  tunnel 
owner  to  drive  his  tunnel  through  and  across  any 
located  or  patented  'claim  in  front  of  the  mouth  of  such 
tunnel.^^     Idaho  has  a  similar  statute.'^" 

This  class  of  legislation  is  unquestionably  unconsti- 
tutional.    It  is  the  taking  of  private  property  without  v 
purporting  to  provide  any  compensation  therefor. 

Tlie  Colorado  statute  has  been  declared  unconstitu- 
tional by  Judge  Hallett." 

We  think  it  quite  well  settled  that  easements  and 
rights  of  way  may  be  acquired  over  the  public  domain, 
but  after  it  passes  into  private  ownership  no  such 
rights  can  be  asserted,  except  for  public  purposes,  or 
possibly  for  limited  private  uses,  if  provided  for  by  the 
state  constitution.  In  such  cases,  unless  consent  is  ob- 
tained, condemnation  proceedings  are  necessary/'' 

69  Act  of  April  17,  1897,  Laws  Colo.  1897,  pp.  181,  182;  Mills' 
Annot.  Stats.  1905,  §§  3141a-3141d.  It  is  possible  that  this  statute  may 
have  been  repealed  by  implication.  It  is  not  carried  into  the  Eevised 
Statutes  of  1908.  In  1907  an  eminent  domain  statute  was  passed 
which  authorizes  condemnation  for  ore  carrying  purposes  by  means  of 
a   tunnel.     Rev.   Stats.   1908,   §§2435-2438. 

70  Civ.  Code,  1901,  §§  2575,  2578;  Laws  1899,  pp.  653,  654;  Rev.  Codes 
1908,  §§  3236-3239. 

71  Cone  V.  Roxana  G.  M.  &  T.  Co.,  2  Leg.  Adv.  350 ;  Stratton  v.  Gold 
Sovereign  M.  Co.,  1  Leg.  Adv.  350;  Portland  G.  M.  Co.  v.  Uinta  Tunnel 
M.  &  T.  Co.,  1  Leg.  Adv.  494;  Matoa  G.  M.  Co.  v.  Chicago  &  Cripple 
Creek  G.  M.  Co.,  vol.  78,  Mining  and  Scientific  Press,  p.  379. 

72  See  Judge  Lunt's  opinion  in  Ajax  G.  M.  Co.  v.  Calhoun  G.  M.  Co., 


1131  SUGGESTED   INQUIRIES.  §  491 

So  far  as  the  question  under  consideration  involves 
the  exercise  of  the  right  of  eminent  domain,  we  have 
heretofore  fully  presented  it/^ 

Some  reference  to  it  will  again  be  made  in  present- 
ing the  cross-lode  questions/* 

§  491.  Inquiries  suggested  in  the  light  of  rules  thus 
far  enunciated  by  the  supreme  court  of  the  United 
States  as  to  the  extent  of  the  rights  of  a  tunnel  locator 
on  a  vein  discovered  in  the  tunnel. — It  is,  as  we  have 
seen,  now  settled  that  the  tunnel  locator  is  entitled  to 
fifteen  hundred  linear  feet  on  the  vein  discovered  in 
the  tunnel,  measured  from  the  discovery  in  such  direc- 
tion as  the  locator  may  designate  by  a  notice  posted  at 
the  mouth  of  the  tunnel.  That  he  may  drift  along  the 
vein  from  the  tunnel  level  to  the  linear  extent  and  in 
the  direction  claimed  is  now  unquestioned.  What  are 
his  rights  in  depth?  Is  he  to  be  confined  within  rect- 
angular planes,  as,  it  is  asserted,  was  the  rule  under 
the  act  of  1866,^*  or  within  planes  parallel  to  the  tunnel 
bore?  May  he  fix  end-lines  arbitrarily,  or  has  he  the 
right  to  follow  the  vein  downward  at  all  ? 

If  the  tunnel  law  stands  alone,  there  is  no  express 
grant  of  the  extralateral  right.  This  right,  so  far  as 
lodes  located  at  the  surface  are  concerned,  is  granted 
by  section  twenty-three  hundred  and  twenty-two  of 
the  Revised  Statutes,  which  is  neither  adopted  by  nor 
referred  to  in  the  tunnel  laws.  Moreover,  the  right  as 
defined  in  section  twenty-three  hundred  and  twenty- 
two  is  limited  to  locations  having  the  tops,  or  apexes, 
of  discovered  veins  within  a  surface  location,  and  is 
confined  within  end-line  planes  marked  at  the  surface. 

1   Leg.   Adv.   426,   429;    St.   Louis   M.   &.   M.   Co.   v.    Montana  Limited, 
113  Fed.  900,  902,  51  C.  C.  A.  530;   Baillie  v.  Larson,  138  Fed.  177. 

73  Ante,  §§  252-264. 

7*  Post,  §§  557-561. 

78  Post,  §  576. 


§  491         EIGHTS  ACCRUING  TO  THE  TUNNEL  PROPRIETOR.  1132 

The  only  section  of  the  mining  laws  to  which  the 
tunnel  sections  refer  is  twenty-three  hundred  and 
twenty,  and  this  last-named  section  is  held  by  the 
courts  to  apply  only  with  regard  to  the  length  on  the 
lode/« 

If  any  right  to  follow  the  vein  downward  is  to  be 
exercised  by  the  tunnel  claimant,  the  courts  will  be 
compelled  to  define  the  limitations  without  any  refer- 
ence to  the  remaining  sections  of  the  Revised  Statutes, 
and  without  resort  to  any  previous  miners'  rules  and 
customs,  as  none  such  ever  existed.  From  what  source 
will  they  seek  light  ?  "Will  not  an  effort  to  either  recog- 
nize or  define  this  right  to  follow  the  vein  in  its  down- 
ward course  be  amenable  to  the  criticism  of  judicial 
legislation?  As  no  surface  marking  of  the  claim  on 
the  lode  discovered  in  the  tunnel  is  required,  the  entire 
body  of  the  mining  law  touching  the  apex  and  the 
extralateral  right  predicated  upon  end-lines  crossing 
the  apex  of  the  lode  at  the  surface  is  eliminated  from 
consideration,  and  it  would  seem  that  the  courts  are 
practically  left  without  guide  or  compass. 

It  is  conceded  that  no  patent  can  issue  for  a  claim  on 
a  lode  without  inclosing  such  claim  on  the  surface 
within  surface  boundaries.  Herein  we  have  confirma- 
tion of  the  suggestion  that  blind  lodes  discovered  in  a 
tunnel  must  be  relegated  to  a  category  by  themselves. 
The  general  body  of  the  mining  laws  does  not  apply  to 
them.     What,  then,  becomes  of  the  extralateral  right? 

The  suggestion  offered  by  the  supreme  court  of  the 
United  States,  in  its  opinion  in  the  Ellet-Campbell 
case,^^  thai  there  would  be  no  impropriety  in  marking  a 
location  on  the  surface  perpendicularly  overlying  the 

76  Enterprise  M.  Co.  v.  Kico-Aspen  M.  Co.,  66  Fed.  201,  204,  13  C. 
C.  A.  390;  S.  C,  on  appeal,  167  U.  S.  108,  109,  17  Sup.  Ct.  Rep.  762, 
42  L.  ed.  96. 

77  167  U.  S.  116,  119,  17  Sup.  Ct.  Eep.  765,  42  L.  ed.  101,  18  Morr. 
Min.   Rep.   669. 


1133 


SUGGESTED  INQUIRIES. 


§491 


underground  discoverj^,  might  be  of  practical  advan- 
tage in  the  solution  of  some  of  the  problems  here  dis- 
cussed, if  the  surface  location  as  marked  fortuitously 
included  the  apex  of  the  vein,  which,  for  obvious 
reasons,  in  nine  cases  out  of  ten  it  would  not.  A  sur- 
face location  on  the  dip  of  the  vein,  although  having 
priority,  would  not  confer  extralateral  rights.  If  the 
rights  under  such  a  location  are  to  be  defined  with 
reference  to  the  general  body  of  the  mining  law,  they 
would  be  subordinated  to  the  rights  of  a  junior  loca- 
tion properly  covering  the  apex. 

There  is  still  another  suggestion  which  presents  in- 
creased difficulties.  Could  the  tunnel  locator,  with  his 
linear  claim  on  the  lode  discovered  in  the  tunnel,  fol- 
low that  vein  upward?  If  so,  how  far  and  within  what 
planes?  There  is  no  law  which  sanctions  the  following 
of  a  vein  on  its  upward  course.  Let  us  illustrate  some 
of  these  inquiries  by  the  use  of  a  diagram  (Figure  43). 


jr. 

Figure  43. 


§  491         RIGHTS  ACCRUING  TO  THE  TUNNEL  PROPRIETOR.  1134 

.  A  locates  a  tunnel-site  on  the  line  x — x,  starting  at 
the  base  of  the  mountain,  and  perfects  his  location 
prior  to  the  surface  discoveries  and  locations  indicated 
by  B,  C,  and  D  on  the  crest  of  the  mountain.  The  veins 
of  these  surface  locations — any  one  of  them  may  be 
singled  out  for  illustrative  purposes — dip  in  the  direc- 
tion of  the  tunnel,  as  indicated  by  the  arrows  and  ex- 
tended end-line  planes.  It  is  probable,  perhaps  inevi- 
table, that  each  one  of  these  veins  will,  on  its  downward 
course,  intersect  the  plane  of  the  tunnel  bore,  and  it 
requires  no  stretch  of  the  imagination  to  assume  that  at 
some  point,  as  the  tunnel  is  driven  into  the  hill,  it  may 
cut  one  or  all  of  these  veins.  What  will  be  the  rights 
of  the  parties?  The  angle  at  which  the  tunnel  must 
intersect  these  veins  is  not  specified  in  the  law.  Nor 
does  the  law  specify  in  terms  that  the  apex  of  the  vein 
must  cross  the  line  of  the  tunnel.  In  discovering  and 
locating  the  claims,  B,  C,  and  D,  the  locators  have  not 
invaded  the  area  of  the  tunnel  location.  They  are  all 
outside  of  the  tunnel  parallelogram,  three  thousand 
feet  square,  within  which  prospecting  is  practically  in- 
hibited. Yet  if  these  veins  are  discovered  in  the  tun- 
nel, must  not  the  rights  of  B,  C,  and  D,  although  cover- 
ing the  apex  and  without  the  reserved  area,  yield  to  the 
right  acquired  by  discovery  in  the  tunnel?  When  the 
statute  says  that  the  tunnel  discoverer  shall  be  entitled 
to  veins  within  three  thousand  feet  of  the  tunnel,  it 
must  mean  that  he  is  entitled  to  such  veins  as  are  dis- 
covered within  that  distance.  The  statute  does  not 
limit  his  rights  to  lodes  having  their  apices  within 
three  thousand  feet  of  the  face  of  the  tunnel  or  within 
the  limits  of  tunnel  location  three  thousand  feet  square. 
In  the  cases  illustrated,  may  the  tunnel  discoverer 
follow  the  vein  up  war  d^  or  is  there  to  be  a  horizontal 


1135  SUGGESTED   INQUIRIES.  §  491 

partition  between  the  tunnel  locator  and  the  mining 
claimants  of  B,  C,  and  D? 

Mr.  Costigan,  in  his  excellent  treatise  on  Mining 
Law/*  entertains  the  view  that  the  discoverer  of  a  vein 
in  a  tunnel  located  for  discovery  purposes  is  not  en- 
titled to  all  veins  discovered  in  the  tunnel,  but  only 
those  which  have  their  apexes  within  the  area  of  the 
tunnel  location.  He  also  thinks  that  the  discoverer  of 
the  vein  should  be  peraiitted  to  follow  it  upward  to  the 
apex  and  downward  indefinitely  within  rectangular 
planes. 

The  principal  difficulty  with  this  solution  is  that 
there  is  no  warrant  for  it  in  the  statute.  It  presents  an 
equitable  method  of  settling  a  vexed  question,  and 
some  court  may  in  the  future  have  the  courage  to 
adopt  it.  But  we  are  of  the  opinion  that  it  is  a  ques- 
tion with  which  congress  alone  may  deal. 

78  Page    242. 


CHAPTER   y. 

COAL  LANDS. 

Article  I.    Introductory. 

n.    Manner  op  Acquiring  Title  to  Coal  Lands. 

AnTiCLE  I.    Introductory. 


§  494.     Foreword. 

§  495.  Classification  of  coal  as  a 
mineral — History  of  leg- 
islation —  Characteriflticfl 
of  the  system. 

§  495a.  Severance  of  title  to  un- 
derlying coal  from  title 
to  surface — Agricultural 


entries  of  coal  lands  re- 
serving coal  to  the  United 
States. 
§  496.     Eules       for      determining 

character  of  land. 
§  497.     Geographical  scope  of  the 
coal  land  laws. 


§  494.  Foreword. — In  dealing  witli  the  subject  of 
coal  lands  and  treating  of  the  existing  method  by  which 
title  may  be  acquired  to  lands  containing  coal,  we  are 
embarrassed  by  the  belief  that  the  laws  now  upon  the 
statute  books  dealing  with  this  important  branch  of  the 
public  land  laws  are  probably  about  to  give  way  to  a 
radically  different  system. 

Almost  all  the  areas  containing  known  deposits  of 
coal  have  been  withdrawn  from  coal  land  entry.  Those 
supposed  to  be  valuable  for  this  mineral  are  withdrawn 
for  purposes  of  classification  and  valuation.  While  as 
coal  lands  are  classified  and  valued  they  are  restored  to 
entry,  it  is  quite  apparent  that  the  policy  of  the  govern- 
ment, so  far  as  it  can  be  shaped  by  the  executive  and 
departmental  oflScials,  discloses  an  intention  to  retain 
these  areas  in  a  state  of  reservation  to  abide  the  action 
of  congress  upon  the  proposed  conservation  measures 
alluded  to  in  a  previous  section.^ 


4  §200. 


(1136) 


1137  CLASSIFICATION  OP  COAL  AS  A  MINERAL.  §  495 

The  plan  whicli  seems  to  find  the  most  favor  is  that 
of  a  leasing  by  the  government  with  reservation  of 
royalty^  and  with  an  elastic  power  in  the  land  depart- 
ment to  deal  with  the  situation,  as  to  terms  and  time, 
according  to  local  conditions  and  environment.  A 
number  of  measures  are  now  pending  in  congress,  and 
each  has  its  supporters.  It  is  impossible  for  us  to  deal 
with  prospective  legislation.  The  situation  as  it  con- 
fronts us  compels  us  to  deal  with  the  laws  which  are 
now  on  the  statute  books,  although  from  a  practical 
standpoint  they  are  not  in  active  operation  jexceot 
where  lands  having  been  identified,  classified  and 
valued,  they  are  restored  to  entry  under  the  coal  land 
laws  as  they  now  exist. 

§  495.  Classification  of  coal  as  a  mineral— History 
of  legislation — Characteristics  of  the  system. — As  ob- 
served in  a  previous  section,^  prior  to  the  passage  of 
the  coal  land  act  of  July  1,  1864,  the  land  department 
did  not  regard  coal  as  a  mineral  within  the  meaning 
of  the  prior  legislation  of  congress,  yet  this  substance, 
although  essentially  of  vegetable  origin,  has,  generally 
speaking,  been  classified  as  mineral,  as  it  came  within 
the  etymological  signification  of  the  term,  being  ob- 
tained from  underground  excavations  or  "mines."* 

The  act  above  referred  to'*  was  the  first  legislation  by 
congress  providing  a  method  for  the  disposal  of  coal 
lands.     It  was  followed  in  the  succeeding  year  by  a 

2  See  interesting  address  delivered  by  George  Otis  Smith,  director  of 
the  Geological  Survey  at  the  American  Mining  Congress,  Chicago,  1911, 
Mining  &  Scientific  Press,  vol.  103,  p.  612.  Also  Report  of  Secretary 
Ballinger,  June  30,  1909;  Bulletin  424,  U.  S.  Geological  Survey,  p.  45. 

3  Ante,  §  140. 
*  Ante,  §  88. 

6  13   Stats,  at  Large,  p.  343. 
Lindley  on  M. — 72 


§  495  INTRODUCTORY.  1138 

supplemental  act,'  and  in  1873  congress  passed  a  law 
which  is  the  basis  of  the  existing  system/ 

Whatever  may  have  been  the  rule  as  to  the  classifica- 
tion of  coal  lands  prior  to  the  passage  of  the  act  of 
1864,  since  that  date  they  are  classified  as  mineral  by 
legislative  construction,* 

As  heretofore  noted,^  lands  containing  coal  are  not, 
as  a  rule,  excepted  from  the  operation  of  the  railroad 
grants,"  nor  are  they  considered  by  the  department  as 
lands  subject  to  ** mineral  entry"  within  the  meaning 
of  the  act  of  June  3,  1878,^^  granting  the  privilege  of 
cutting  timber  upon  so  much  of  the  public  domain  in 
certain  states  as  is  subject  to  mineral  entry/^ 

Coal  lands  are  mineral  lands  within  the  meaning, 
generally,  of  the  laws  relating  to  the  public  lands/' 
They  may  not  be  selected  in  lieu  of  lands  in  forest  re- 
serves/* But  when  found  within  forest  reserves  they 
are  subject  to  appropriation  the  same  as  other  mineral 
lands/® 

It  will  serve  no  useful  purpose  to  further  retrace  the 
history  of  congressional  legislation  on  this   subject. 

«  March  3,  1865,  13  Stats,  at  Large,  p.  529. 

^  Rev.  Stats.,  §§2347,  2352;  17  Stats,  at  Large,  607,  608;  Comp. 
Stats.,  1901,  pp.  1440,  1441;  5  Fed.  Stats.  Ann.  55,  57. 

8  United  States  v.  Mullan,  7  Saw.  466,  10  Fed.  785,  787;  S.  C,  on 
appeal,  118  U.  S.  271,  278,  6  Sup.  Ct.  Rep.  1041,  30  L.  ed.  170;  In  re 
Crowder,  30  L.  D.  92,  95;  Brown  v.  Northern  Pac.  R.  R.  Co.,  31  L.  D. 
29;  United  States  v.  Northern  Pacific  Ry.,  170  Fed,  498,  500;  S.  C, 
on  appeal,   176  Fed,   706,  709,  101   C.   C.  A.   117, 

»  Ante,  §  152. 

10  See  Rocky  Mountain  C.  &  I.  Co.,  1  Copp's  L.  O.  1, 

11  20  Stats,  at  Large,  p.  88;  Comp.  Stats.  1901,  p.  1528;  7  Fed, 
Stats.  Ann.  297. 

12  Instructions   to   Timber   Agents,   2   L.   D.   827, 

13  Brown  v.  Northern  Pac.  R.  R,  Co.,  31  L,  D,  29;  Washington  Securi- 
ties Co.  V.  United  States,  194  Fed.  59,  65. 

1*  Id. 

i»  In  re  Crowder,  30  L.  D.  92,  95, 


1139  SEVERANCE   OF   TITLE.  §  495a 

The  coal  land  laws  form  a  system  peculiar  to  them- 
selves, having  nothing  in  common  with  the  general 
mining  laws,  and  strictly  speaking,  are  not  in  pari 
materia.  The  ownership  and  possession  of  this  class 
of  public  lands  were  never  subject  to  regulation  by 
local  rules  ar.d  customs,  and  from  the  passage  of  the 
first  act  in  relation  to  them  to  the  present  time  the 
method  of  acquiring  title  to  them  has  been  simple,  and 
with  the  exception  of  certain  classes  of  fraudulent  en- 
tries as  the  result  of  unlawful  combinations  to  secure 
large  tracts  of  coal  lands  contrary  to  the  law,  has  been 
unaccompanied  by  the  perplexities  that  have  arisen  in 
the  administration  of  the  laws  relative  to  lands  con- 
taining lodes  and  placers.  Such  questions  as  have 
arisen  between  conflicting  claimants  in  reference  to 
coal  have  been  adjudicated  entirely  within  the  land 
department.  No  controversies  arising  out  of  the 
proper  construction  of  these  laws  are,  in  the  process 
of  obtaining  title,  relegated  to  the  courts  for  deter- 
mination. The  coal  land  system,  like  that  applica- 
ble to  homestead,  pre-emption,  and  otlier  agricul- 
tural entries,  is  administered  by  the  executive  depart- 
ment of  the  government.  For  this  reason  we  note  the 
almost  total  absence  of  judicial  decisions  upon  the  sub- 
ject, and  must  look,  generally  speaking,  to  the  land  de- 
partment for  the  rules  of  interpretation. 

§  495a.  Severance  of  title  to  underlying  coal  from 
title  to  surface — Agricultural  entries  of  coal  lands  re- 
serving coal  to  the  United  States. — Before  entering 
upon  the  discussion  of  the  manner  in  which  title  to  coal 
lands  may  be  acquired,  it  is  pertinent  to  note  that  a 
distinctly  new  departure  in  governmental  policy  with 
regard  to  the  administration  of  the  coal  land  laws  finds 
expression  in  two  acts  of  congress,  one  passed  on  March 


§  495a  introductoey.  1140 

3,  1909,"  and  the  other  June  22,  1910,"  both  of  which 
acts  permit  agricultural  entries  on  lands  containing  or 
supposed  to  contain  coal,  the  entryman  obtaining  title 
to  the  surface,  the  coal  being  reserved  to  the  United 
States  to  be  disposed  of  to  others  in  the  manner  pro- 
vided by  laws  in  force  at  the  time.  The  object  of  the 
first  of  these  acts  is  thus  stated  by  the  general  land 
office : — 

The  main  purpose  of  the  act  is  to  protect  persons 
who  in  good  faith  have  located,  selected  or  entered 
under  nonmineral  laws,  public  lands  which  are,  after 
such  location,  selection,  or  entry  classified,  claimed, 
or  reported  as  being  valuable  for  coal  by  providing 
means  whereby  such  persons  may,  at  their  election, 
retain  the  lands  selected  or  entered,  subject  to  the 
right  of  the  government  to  the  coal  therein.  It  ap- 
plies alike  to  locations,  selections  and  entries  made 
prior  to  its  passage  and  those  made  subsequently 
thereto.  The  act  also  provides  for  the  disposal  un- 
der the  existing  coal  land  laws  of  the  coal  contained 
in  such  lands." 

The  act  of  June  22,  1910,  is  in  pari  materia  with  the 
first  act.  There  is  no  inconsistency  between  them,  and 
in  the  opinion  of  the  commissioner  of  the  general  land 
office  and  the  secretary  of  the  interior  both  of  them 
may  have  harmonious  operation  within  their  proper 
spheres." 

The  general  land  office  defines  the  scope  of  these  two 
acts  and  the  difference  between  them  as  follows : — 

16  35  Stats,  at  Large,  p.  844;  Comp.  Stats.  (Supp.  1911),  p.  613; 
Fed.  Stats.  Ann.  (Supp.  1909),  p.  653. 

17  36  Stats,  at  Large,  p.  553;  1  Fed.  Stats.  Ann.  (Supp.  1912),  p. 
317. 

18  Circulars,  March  25,  1909,  37  L.  D.  525-;  amended  Sept.  7,  1909, 
38  L.  D.  183. 

i»  Circular,  38  L.  D.  180,  41  L.  D.  358. 


1141  SEVERANCE   OF    TITLE.  §  49 5 A 

The  earlier  law  provides  a  remedy  in  these  cases 
in  which  entries,  locations  and  selections  have  been 
or  may  be  made  for  lands  which,  subsequently  to 
entry,  location  or  selection,  have  been  or  may  be 
claimed,  classified  or  reported  as  being  valuable  for 
coal,  while  the  later  act  permits  dispositions  (therein 
named)  to  be  made  of  lands  valuable  for  coal  not- 
withstanding that  they  may  have  been  previously 
withdrawn  or  classified  as  such.^° 

The  later  act  applies  to  unreserved  public  lands  of 
the  United  States  in  those  states  in  which  the  coal  land 
laws  are  applicable,  which  have  been  withdrawn  from 
coal  entry  and  not  released  therefrom,  or  which  have 
been  classified  as  coal  lands  or  which  are  valuable  for 
coal  though  not  withdrawn  or  classified.  The  act  does 
not  apply  to  Alaska." 

These  acts  enable  any  person  desiring  to  make  entry 
under  the  homestead  laws  or  the  desert  land  laws,  and 
any  state  desiring  to  make  selection  under  the  Carey 
act,  to  acquire  title  to  the  surface  of  lands  either  classi- 
fied as  coal  or  supposed  to  be  valuable  therefor,  the 
coal  being  reserved  to  the  United  States  for  future  dis- 
posal. 

By  act  of  April  30,  1912,"  the  operation  of  the  act  of 
June  22, 1910,  was  extended  to  include  selections  by  the 
several  states  under  grants  made  by  congress.^^ 

As  to  the  reserved  coal,  the  act  of  June  22, 1910,  pro- 
vides as  follows : — 

The  coal  deposits  in  such  lands  shall  be  subject  to 
disposal  by  the  United  States  in  accordance  with  the 
coal  land  laws  in  force  at  the  time  of  such  disposal. 
Any  person  qualified  to  acquire  coal  deposits  or  the 

20  Circular,  39  L.  D.  180;  In  re  Woodhouse,  41  L.  D.  145. 

21  Instructions,   39   L.   D.    473. 

22  37  Stats,  at  Large,  105. 

23  state  of  Wyoming,  41  L.  D.  19;  Instructions,  41  L.  D.  89. 


§  495a'  introductory.  1142 

right  to  mine  and  remove  tlie  coal  under  the  laws  of 
the  United  States  shall  have  the  right  at  all  times  to 
enter  upon  the  lands  selected,  entered  or  patented  as 
provided  by  this  act  for  the  purpose  of  prospecting 
for  coal  thereon  upon  the  approval  by  the  secretary 
of  the  interior  of  a  bond  or  undertaking  to  be  tiled 
by  him  as  security  for  the  payment  of  all  damages 
to  the  crops  and  improvements  on  such  lands  by  rea- 
son of  such  prospecting.  Any  person  who  has  ac- 
quired from  the  United  States  the  coal  deposits  in 
any  such  land,  or  the  right  to  mine  or  remove  the 
same,  may  re-enter  and  occupy  so  much  of  the  sur- 
face as  may  be  required  for  all  purposes  reasonably 
incident  to  the  mining  and  removal  of  the  coal  there- 
from and  mine  and  remove  the  coal  upon  payment  of 
the  damages  caused  thereby  to  the  owner  thereof,  or 
upon  giving  a  good  and  sufficient  bond  or  undertak- 
ing in  an  action  instituted  in  any  competent  court  to 
ascertain  and  fix  said  damages.  Provided,  that  the 
owner  under  such  limited  patent  shall  have  the  right 
to  mine  coal  for  use  upon  the  land  for  domestic  pur- 
poses at  any  time  prior  to  the  disposal  by  the  United 
States  of  the  coal  deposits.^* 

The  manner  in  which  coal  in  the  public  lands  is  to 
be  disposed  of  under  existing  laws  will  be  later  con- 
sidered. The  severance  of  title  to  the  mineral  from  the 
title  to  the  surface  by  the  proprietor  was  a  common 
occurrence  in  England.-^  The  method  adopted  by  the 
United  States  by  the  two  acts  above  noted  whereby  the 
title  to  coal  is  thus  severed  has  its  parallel  in  the  Mexi- 
can codes  as  to  all  metallic  substances  and  certain 
classes  of  nonmetallic  minerals.  The  right  to  denounce 
mines  in  private  property  in  Mexico  is  recognized,  and 

2*  Section  3,  Act  of  June  22,  1910,  36  Stats,  at  Large,  p.  583;  Comp. 
Stats.   (Supp.  1911),  p.  614;   1  Fed.  Stats.  Ann.   (Supp.  1912),  p.  317. 
25  Ante,  I  9. 


1143  RULES  FOR  DETERMINING   CHARACTER  OF  LAND.  §  496 

provision  is  made  to  compensate  the  owner  of  the  sur- 
face.^'' 

By  act  of  congress  passed  August  24,  1912,-*'''  agricul- 
tural entries  are  provided  for  in  the  state  of  Utah  on 
land  containing  oil  and  natural  gas,  the  entrj'man  re- 
ceiving a  limited  patent  reserving  the  oil  and  gas  to 
the  United  States,  practically  as  in  the  case  of  coal. 

A  gradual  extension  of  this  method  of  dealing  with 
the  mineral  deposits  of  the  public  domain  is  not  un- 
likely." 

§  496.  Rules  for  determining  character  of  land. — 
The  determination  of  the  mineral  or  nonmineral  char- 
acter of  any  given  tract  of  public  land  is  confided  ex- 
clusively to  the  land  department  or,  more  accurately 
speaking,  the  general  land  office.  This  department 
formulates  its  own  rules,  prescribes  forms  of  procedure, 
and  reaches  its  conclusions  by  methods  which  are  not 
subject  to  review  or  control  by  the  courts.  Its  decision 
is  final./*^ 

For  many  years,  and  until  a  comparatively  recent 
period  in  passing  upon  the  character  of  lands  alleged 
to  contain  coal,  it  pursued  practically  the  same  course 
and  adopted  the  same  methods  applied  to  investigation 
of  the  character  of  mineral  lands  generally.  While 
these  rules  have  become  in  a  measure,  at  least,  obsolete 
or,  except  in  rare  instances,  of  doubtful  application, 

26  Ante,  §  13. 

26a  37  Stats,  at  Large,  496. 

27  The  acts  of  March  3,  1909  (35  Stats,  at  Large,  844;  Comp.  Stat3. 
(Supp.  1911),  p.  613;  Fed.  Stats.  Ann.  (Supp.  1909),  p.  563),  June  22, 
1910,  and  April  30,  1912  (36  Stats,  at  Large,  583;  1  Fed.  Stats.  Ann. 
(Supp.  1912),  p.  317),  are  printed  in  full  in  the  Appendix,  together 
with  a  reference  to  all  circular  instructions  containing  forms  of  ap- 
plication, .  undertakings,    etc. 

28  Ante,  §  207. 


§  496  INTEODUCTORT.  1144 

they  are  of  sufficient  importance  to  be  here  noted.  An 
agricultural  entryman  may  challenge  the  alleged  coal 
character  of  land  and  be  unwilling  to  accept  a  limited 
patent  with  reservations,  and  a  controversy  may  arise 
which  would  involve  the  application  of  some  of  these 
general  rules. 

These  may  be  thus  formulated  with  special  reference 
to  coal: — 

(1)  All  classes  of  coal  deposits,  whether  anthracite, 
bituminous,  lignite,  or  cannel,  are  embraced  within  the 
coal  land  laws;^* 

(2)  It  must  be  shown  that  as  a  present  fact  the  land 
is  more  valuable  for  the  purpose  of  its  coal  product 
than  for  any  other  purpose  ;^°  that  the  substance  exists 
therein  in  paying  quantities,^^  or  that  it  is  sufficiently 
valuable  to  be  worked  as  a  mine." 

These  facts  must  be  shown  by  the  actual  production 
of  coal,^^  or  by  satisfactory  evidence  that,  taking  the 
tract  as  a  whole,  coal  exists  therein  in  sufficient  quanti- 
ties to  make  the  same  more  valuable  for  mining  than 
for  agricultural  purposes.^* 

The  extent  of  the  deposit  may  be  shown  by  the  tes- 
timony of  geological  experts  and  practical  miners, 
taken  in  connection  with  the  actual  production  of  coal 
from  some  portion  of  the  tract.^^ 

2a  Sickle's   Min.   Dec.   397. 

so  Hamilton  v.  Anderson,  19  L.  D.  168;  Commrs.  of  Kings  County  v. 
Alexander,   5   L.   D.   126. 

31  Smith  V.   Buckley,    15   L.   D.   321. 

82  Jones  V.   Driver,   15   L.  D.   514. 

S3  Hamilton  v.  Anderson,  19  L.  D.  168;  Commrs.  of  Kings  County  v. 
Alexander,  5  L.  D.   126. 

34  Mitchell  V.  Brown,  3  L.  D.  65;  Savage  v.  Boynton,  12  L.  D.  612. 

35  Kucker  v.  Knisley,  14  L.  D.  113;  United  States  v.  Diamond  Coal 
&  Coke  Co.,  191  Fed.  786,  795,  112  C.  C.  A.  272. 


1145  RULES  FOR  DETERMINING   CHARACTER  OP  LAND.  §  496 

In  determining  these  facts,  means  of  transportation 
cannot  be  taken  into  consideration  as  affecting  the 
value  of  the  coal  shown  to  exist/* 

That  lands  in  the  near  vicinity,"  or  even  those  di- 
rectly adjoining,  are  shown  to  contain  coal,^®  is  insuffi- 
cient to  establish  the  character  of  a  tract  upon  which 
no  coal  has  been  developed.^® 

Mere  outcroppings*"  or  other  surface  indications  will 
not,  in  the  absence  of  proof  of  commercial  value  of  the 
deposit,  prevent  the  entry  of  such  lands  under  the  pre- 
emption or  homestead  laws." 

But  it  is  not  necessary  to  show  actual  development 
on  each  forty-acre  subdivision,*^  nor  upon  all  parts  of 
a  forty-acre  tract." 

When,  however,  a  conflict  arises  between  an  agri- 
cultural and  coal  claimant,  the  character  of  the  land  to 
the  extent  of  the  entire  conflict  area  is  involved,  and, 
necessarily,  proofs  of  a  more  specific  character  would 
be  required  than  in  the  case  of  an  ex  parte  application 
to  enter  under  the  coal  laws. 

The  discover}^  of  coal  in  paying  quantities  on  land 
embraced  within  a  homestead  claim  precludes  the  com- 
pletion of  the  entry,**  unless  the  entryman  is  willing  to 
accept  the  limi1?fed  patent  reserving  the  coal  to  the 

86  Smith  V.  Buckley,  15  L.  D.  321. 

87  In  re  Williams,  11  L.  D.  462;  Scott  v.  Sheldon,  15  L.  D.  361. 

88  Commrs.  of  Kings  County  v.  Alexander,  5  L.  D.  126;  In  re 
Archuleta,  15  Copp'a  L.  O.  256. 

39  See,   also,   Dughi   v.    Harkins,   2    L.   D.    721. 
<o  Frees  v.  State  of  Colorado,  22  L.  D.  510. 

41  Colorado  Coal  &  Iron  Co.  v.  United  States,  123  U.  S.  307,  328, 
8  Sup.  Ct.  Rep.  131,  31  L.  ed.  182. 

42  Hamilton  v.  Anderson,  19  L.  D.  168;  McWilliams  v.  Green  River 
Coal  Assn.,  23  L.  D.  127;  Reed  v.  Nelson,  29  L.  D.  615. 

43  Stat*   of   Montana   v.   Buley,   23   L.   D.    116. 

44  Harnish  v.  Wallace,  13  L.  D.  108;  Dickinson  v.  Capen,  14  L.  D. 
426;    Leonard  v.   Lennox,   181   Fed.   760,   104   C.   C.   A.   296. 


§  496  INTRODUCTORY.  1146 

United  States  as  outlined  in  the  preceding  section; 
but  discovery  after  purchase,  under  commuted  liome- 
stead  entry,  will  not  defeat  the  issuance  of  the  patent." 

The  inquiry  as  to  the  character  of  the  land  is  to  be 
addressed  to  the  date  of  the  final  entry." 

The  modern  method  of  investigating  the  character 
of  coal  lands  is  essentially  scientific.  The  mode  of  oc- 
currence of  coal  differs  from  the  metallic  deposits,  and 
it  is  not  impossible  to  determine  the  quality  and  ex- 
tent of  a  coal-field  by  comparatively  slight  explora- 
tion.*^ The  investigation  of  the  coal  measures  on  the 
public  domain  is  now  confided  to  the  geological  sur- 
vey.*® These  scientific  inquiries  have  taken  the  place 
of  the  old  method  of  ascertaining  the  coal  character  of 
the  land,  so  that  there  is  but  little  room  for  contro- 
versy over  the  character  of  this  class  of  lands. 

The  rules  governing  the  classification  and  disposal 
of  coal  lands  may  be  said  to  be  in  the  experimental 
stage.  They  are  modified  from  time  to  time  to  meet 
conditions  as  they  arise  and  as  experience  suggests. 
The  control  of  the  department  over  the  subject  is  some- 
what plenary,  and  the  power  to  modify  regulations  is 
liberally  and  frequently  exercised. 

The  latest  circular  on  the  subject  bears  date  Feb- 
ruary 20,  1913.*' 

The  classification  is  made  by  quarter-quarter  sec- 
tions or  surveyed  lots,  except  that  for  good  reason 
classification  may  be  made  by  two  and  one-half  acre 
tracts  or  multiples  thereof  described  as  minor  subdivi- 

*s  Arthur  v.  Earle,  21  L.  D.  92. 

46  Herman   v.    Chase,   37   L.   D.   590. 

47  See  quotations  from  Lesley's  "Manual  of  Coal  and  Its  Topog- 
raphy,"  in   Instructions,  34  L.  D,   194,  201. 

48  Ante,   §  103. 

49  41  L.  D.  528. 


1147  GEOGRAPHICAL  SCOPE.  §  497 

sions  of  quarter-quarter  sections  or  rectangular  lotted 
tracts. 

The  factors  entering  into  the  classification  are  (a) 
heat  value,  (b)  thickness,  (c)  depth  from  the  surface. 

The  unstable  character  of  these  regulations,  the  fre- 
quency and  facility  with  which  they  are  changed,  ren- 
der a  clear  analysis  at  this  time  inadvisable.  The 
latest  instructions  available  at  this  time  will  be  found 
in  the  Appendix.  In  order  to  arrive  at  a  correct  knowl- 
edge of  the  rules  in  force  at  any  future  date,  the  cir- 
cular set  out  in  full  in  the  Appendix  should  be  consulted 
and  the  publications  of  the  department  subsequent 
thereto  should  be  examined.  The  same  may  be  said  of 
the  method  of  valuation  which  is  considered  in  a  sub- 
sequent section.*^" 

The  prior  circular  on  this  subject  may  be  consulted 
with  profit  as  showing  one  of  the  steps  in  the  evolution 
of  the  present  rules."  Also  Bulletin  537  of  the  Geo- 
logical Survey,  where  the  subject  is  fully  discussed. 

§  497.  Geographical  scope  of  the  coal  land  laws.— 
The  system  regulating  the  pre-emption  and  sale  of 
coal  lands  has  substantially  the  same  geographical 
scope  as  the  general  mining  laws.  It  is  in  operation 
wherever  coal  is  found  in  the  precious  metal-bearing 
states,^'  and  in  Arkansas,  Mississippi,  Louisiana, 
Florida,  and  in  certain  parts  of  Oklahoma."  As  here- 
tofore noted,  Alabama,"  Michigan,  Minnesota,  Wis- 

60  Post,   §  507. 

51  Instructions  April  10,  1909,  37  L.  D.  653;  amended  February  10, 
1910,38  L.  D.  452. 

52  Ante,    §  81. 

63  Ante,   §  81,  note   1,  pp.  96,   113. 

54  For  method  of  acquiring  coal  lands  in  Alabama,  see  Circular  In- 
Btructions,  10  Copp's  L.  0.  54;  In  re  Robert  Lalley,  10  Copp's  L.  0.  55; 
In  re  Harris,  28  L.  D.  90. 


§  497  INTRODUCTORY.  1148 

consin,  Kansas,  and  Missouri"  are  excepted  from  the 
operation  of  the  federal  mining  laws,"  except  as  to  the 
location  of  salines." 

The  act  of  June  22,  1910,  permitting  limited  patents 
to  issue  to  agricultural  entrymen,  reserving  the  coal 
to  the  United  States,  was  extended  to  Alabama  by  act 
of  April  23,  1912,  but  as  yet  there  is  no  law  authoriz- 
ing the  disposal  of  coal  in  such  lands.^^ 

The  coal  land  laws  were  extended  to  Alaska  by  act 
of  congress  approved  June  6,  1900,"  but  as  these  laws 
contemplated  the  entry  and  sale  of  surveyed  lands  and 
as  the  public  surveys  had  not  been  to  any  serious  ex- 
tent extended  over  Alaska,  the  law  was  inoperative, 
so  far  as  securing  government  title  was  concerned.*'^ 
Coal  land  locations  were  made,  but  the  possessory 
rights  were  never  recognized  by  the  government.  This 
act  was  followed  by  an  amendatory  one  passed  April 
28,  1904,"  which  provided  that  any  person  or  associa- 
tion of  persons  qualified  to  make  entry  under  the  coal 
land  laws,  who  shall  have  opened  or  improved  a  coal 
mine  or  coal  mines  on  any  of  the  unsurveyed  public 
lands  of  the  United  States  in  the  district  of  Alaska, 
may  locate  the  lands  upon  which  such  mine  or  mines 
are  situated  in  rectangular  tracts  containing  forty, 
eighty,  or  one  hundred  and  sixty  acres  with  north  and 
south  boundary  lines  run  according  to  the  true  me- 

BB  Ante,  §  20. 
68  Ante,   §  81. 

67  Post,    §  514a. 

68  Instructions,  41  L.  D.  32. 

89  31  Stats,  at  Large,  p.  658;  Comp.  Stats.  1901,  p.  1441;  1  Fed. 
Stats.  Ann.  44;   5  Fed.   Stats.  Ann.  57.     Instructions,  30  L.  D.  368. 

60  United  States  v.  Munday,  222  U.  S.  175,  184,  32  Sup.  Ct.  Rep. 
53,  56  L.  ed.  1066;  Opinion  of  Attorney-General,  38  L.  D.  86. 

61  33  Stats,  at  Large,  p.  525;  Comp.  Stats.  (Supp.  1911),  p.  616; 
10    Fed.    Stats.    Ann.    27. 


1149  GEOGRAPHICAL  SCOPE.  §  497 

ridian,  by  marking  the  four  corners  thereof  with  per- 
manent monuments  so  that  the  boundaries  thereof  may 
be  readily  traced. 

The  act  contemplated  a  surv^ey  to  be  made  by  a 
United  States  deputy  surveyor  approved  by  the  sur- 
veyor-general for  Alaska,  such  sur^^ey  when  approved 
to  be  the  basis  of  the  patent.  The  price  of  the  land 
was  fixed  at  ten  dollars  per  acre.  The  act  also  pro- 
vided for  the  determination  of  adverse  claims  on  pro- 
ceedings similar  to  other  mining  claims.  Several 
groups  of  claims  were  surveyed  and  applied  for;  some 
of  them,  including  the  famous  Cunningham  claims, 
passed  to  entry  in  the  local  land  office,  but  they  were 
all  canceled  and  held  to  be  void.""  As  all  lands  of  this 
class  in  Alaska  are  now  withdrawn  from  entry,  loca- 
tion and  filing,"  and  are  not  likely  to  be  restored  until 
congress  passes  new  legislation  providing  for  their  dis- 
posal, the  operation  of  the  coal  land  laws  as  to  Alaska 
is  practically  susiDcnded. 

On  May  28,  1908,  congress  passed  a  further  act" 
relative  to  coal  land  laws  in  Alaska,  the  object  of 
which  was  to  enable  coal  locators  to  consolidate  their 
holdings  and  make  entry  of  contiguous  tracts  not  ex- 
ceeding in  the  aggregate  an  area  of  two  thousand  five 
hundred  and  sixty  acres.  Some  attempts  were  made 
to  acquire  patents  under  this  act,  but  failed."  As  yet 
no  patents  have  ever  been  issued  for  any  coal  lands  in 
Alaska.  All  entries  which  were  ever  allowed  by  the 
local  officers  have  been  canceled,  the  proceedings  in 

6i»  In  re  Scofield,  41  L.  D.  176,  240. 

«2  The  date  of  the  general  withdrawal  was  November  12,  1906, 
Circular,  35  L.  D.  572. 

63  35  Stats,  at  Large,  p.  424;  Comp.  Stats.  (Supp.  1911),  p.  617; 
Fed.   Stats.   Ann.    (Supp.   1909),  p.   30. 

«*  See  Opinion  Attorney-General,  38  L.  D.  86. 


§  501         MANNER  OF   ACQUIRING   TITLE   TO   COAL    LANDS.  1150 

many,  if  not  all  of  them,  having  been  held  to  be  the  re- 
sult of  fraudulent  conspiracies.®'' 


Article  II.    Manner  of  Acquiring  Title  to  Coal 

Lands. 


I  501. 
§  502. 

§  503. 


504. 


Who  may  enter  coal  lands. 

Different  classes  of  en- 
tries. 

Private  entry  under  Re- 
vised Statutes,  section 
twenty-three  hundred 

and  forty-seven. 

Preferential  right  of  pur- 
chase      under       Revised 


Statutes,  section  twenty- 
three  hundred  and  forty- 
eight. 

§  505.     The  declaratory  statement. 

§  506.  Assignability  of  inchoate 
rights. 

§  507.     The  purchase  price. 

§  508.     The    final    entry. 

§  509.     Conclusions. 


§  501.  Who  may  enter  coal  lands. — Entries  of  coal 
lands  may  be  made  by  individuals  or  associations  of 
persons.  In  the  case  of  an  individual,  he  must  be 
above  the  age  of  twenty-one  years  and  a  citizen  of  the 
[Jnited  States,  or  he  must  have  declared  his  intention 
to  become  such.®* 

Persons  cannot  lawfully  associate  themselves  to- 
gether to  enter  tracts  of  one  hundred  and  sixty  acres, 
each  in  severalty  but  to  be  used  for  the  joint  benefit  of 
all  in  equal  shares,  and  patents  issued  on  entries  made 
under  such  an  agreement  will  be  canceled  at  the  suit 
of  the  United  States." 

At  one  time,  the  department  held  that  married 
women  could  not  make  entry  of  this  class  of  lands.®^ 

«5  See  United  States  v.  Munday,  222  U.  S.  175,  184,  32  Sup.  Ct. 
Rep.  53,  56  L.  ed.  1066;  reversing  186  Fed.  375;  United  States  v. 
r>oughten,  186  Fed.  226,  232. 

66  Rev.  Stats.,  §2347;  17  Stats,  at  Large,  607;  Comp.  Stats.  1901, 
p.  1440;   5  Fed.  Stats.  Ann.  55. 

67  United  States  v.  Portland  Coal  &  Coke  Co.,  173  Fed.  566,  568; 
United  States  v.  Allen,  180  Fed.  855,  860.  See,  also.  United  States 
V.  Munday,  222  U.  S.  175,  184,  32  Sup.  Ct.  Rep.  53,  56  L.  ed.  1066. 

68  In  re  Nichol,  15  Copp's  L.  O.  255. 


1151  WHO  MAT  ENTER  COAL  LANDS.  §  501 

This  construction  of  the  law,  which  was  manifestly 
erroneous,'^  is  no  longer  followed,  but  she  is  required 
to  show  that  the  funds  with  which  she  expects  to  pur- 
chase are  her  separate  estate  and  that  her  husband  has 
no  interest  in  them.  The  department  limits  the  exer- 
cise of  this  right  to  states  in  which  no  right  or  title  in 
the  wife's  property  vests  in  the  husband  by  virtue  of 
the  marital  relation.^" 

An  association  of  persons,  as  the  term  is  used  in  the 
coal  land  laws,  is  uniformly  construed  by  the  depart- 
ment to  include  corporations;  but  each  individual  of 
such  association,  whether  incorporated  or  not,  must 
possess  the  requisite  qualifications.  The  law  expressly 
so  provides.  The  ownership,  by  one  member  of  an 
association  seeking  to  enter  coal  lands,  of  interests  in 
other  lands  claimed  under  the  coal  land  laws,  disquali- 
fies the  entire  association.^'  The  right  to  purchase 
coal  lands  can  be  exercised  but  once.^- 

If  an  association  of  persons  makes  a  coal  entry  em- 
bracing a  less  area  than  it  might  have  applied  for, 
such  entry  is  a  bar  to  a  second  one."  Where  a  valid 
reason  therefor  exists,  such  as  may  be  instanced  by  a 
case  where  the  applicant  was  unable  to  complete  an 
asserted  right  by  reason  of  successful  adverse  claims 
to  the  land  sought  to  be  entered,'*  or  where  the  first 
filing  was  abandoned  on  account  of  the  worthless  char- 
es Ante,   §  224. 

70  In  re  Jessie  E.  Oviatt,  35  L.  D.  235. 

71  In  re  Hawes,  5  L.  D.  224;  Kerr  v.  Utah-Wyoming  I.  Co.,  2  L. 
D.    727. 

72  In  re  Kimball,  3  Copp's  L.  O.  50;  In  re  Eiseman,  10  L.  D.  539; 
In  re  Dearden,  11  L.  D.  351;  In  re  Smith,  16  Copp's  L.  O.  112;  la 
re   Negus,   11   L.   D.    32. 

73  In  re  Kimball,  3  Copp's  L.  0.   50. 

74  In  re  Eiseman,  10  L.  D.  539;  In  re  Dearden,  11  L.  D.  351;  Conner 
V.  Terry,  15  L.  D.  310. 


§  501         MANNER  OP   ACQUIRING   TITLE  TO   COAL   LANDS.  1152 

acter  of  tlie  claim,  the  good  faith  of  the  entryman  "being 
apparent,"  the  cancellation  of  his  declaratory  state- 
ment would  he  without  prejudice  to  a  second  applica- 
tion for  other  lands. 

The  rule  applies,  generally  speaking,  to  those  who 
have  perfected  their  entries,  or  when  the  failure  to 
complete  the  entry  is  the  result  of  their  own  neglect/" 
The  rule  has  no  application  to  a  case  where  one  buys, 
and,  prior  to  entry,  sells  a  preferential  right/^  The 
law  clearly  contemplates  and  the  land  department  has 
repeatedly  held  that  an  entry  under  the  coal  land  laws 
must  be  made  in  good  faith  in  the  entrj^man's  interest 
and  not  for  the  benefit  of  another/*  An  entry  sought 
to  be  made  by  one  for  the  benefit  of  a  disqualified  per- 
son,^^  or  for  one  who,  being  originally  qualified,  has 
previously  exhausted  his  rights,®"  or  when  made  in  the 
interest  of  a  corporation  or  association  of  persons,  some 
of  whom  are  either  disqualified  or  have  once  availed 
themselves  of  the  privilege,®^  is  a  fraud  upon  the  gov- 
ernment, and  may  be  annulled  upon  proper  proceed- 
ings in  that  behalf.  Contracts  whereby  such  a  result 
is  sought  to  be  accomplished  are  contrary  to  public 
policy,  and  therefore  void.^^ 

76  In  re  Burrell,  29  L.  D.  328. 

76  In  re  Hutchings,  4  Copp's  L.  O.  142;  In  re  Jolin  McMillan,  7  L. 
D.  181;  In  re  Smith,  16  Copp's  L.  O.  112. 

77  In  re  McConnell,  18  L.  D.  414. 

78  In  re  Oriatt,  35  L.  D.  235;  United  States  v.  Keitel,  211  U.  S.  370, 
390,  29  Sup.  Ct.  Eep.  123,  53  L.  ed.  230. 

79  In  re  Adolph  Peterson,  6  L.  D.  371;  Conner  v.  Terry,  15  L.  D.  310. 

80  McGillicuddy  v.  Tompkins,  14  L.  D.  633. 

81  United  States  v.  Trinidad  Coal  &  C.  Co.,  137  U.  S.  160,  167,  11 
Sup.  Ct.  Eep.  57,  34  L.  ed.  640;  United  States  v.  Keitel,  211  U.  S.  370, 
390,  29  Sup.  Ct.  Eep.  123,  53  L.  ed.  230;  United  States  v.  Forrester,  211 
U.  S.  399,  403,  29  Sup.  Ct.  Rep.  132,  53  L.  ed.  245;  United  States  v. 
Colorado  Anthracite  Coal  Co.,  225  U.  S.  219,  32  Sup.  Ct.  Eep.  617,  56 
L.  ed.  1063;  United  States  v.  Allen,  180  Fed.  855. 

82  Johnson  v.  Leonard,  1  Wash.  564,  20  Pac.  591. 


1153  DIFrERENT  CLASSES  OF  ENTRIES.  §  502 

Parties  participating  in  a  scheme  to  accomijlish  such 
result  may  be  proceeded  against  for  criminal  con- 
spiracy under  section  5440  of  the  Revised  Statutes.*^ 

But  it  has  been  decided  that  there  is  no  prohibition, 
express  or  implied,  in  the  coal  land  law  against  an 
entry  by  a  qualified  person  for  the  benefit  of  another 
person  or  association  where  he  or  it  is  qualified  to 
make  entry  in  his  own  name  and  is  not  seeking  to  evade 
restrictions  in  respect  to  quantity,*^* 

An  entry  by  an  association  of  persons,  all  of  whom 
are  qualified  at  the  date  of  entry,  is  not  vitiated  by  the 
fact  that  at  some  point  of  time  previously  thereto  one 
or  more  of  them  was  disqualified.** 

§  502.  Different  classes  of  entries. — Coal  lands  are 
disposed  of: — 

(1)  By  ordinary  private  entry,  under  the  provisions 
of  section  twenty-three  hundred  and  forty-seven  of  the 
Revised  Statutes; 

(2)  By  pre-emption  or  preference  right  of  purchase, 
under  section  twenty-three  hundred  and  forty-eight. 

The  two  classes  of  entries  have  the  following  features 
in  common : — 

(A)  The  persons  or  associations  must  possess  the 
same  qualifications; 

(B)  The  minimum  purchase  price  to  be  paid  upon 
final  entry  is  the  same; 

83  United  States  v.  Keitel,  211  U.  S.  370,  393,  29  Sup.  Ct.  Rep.  123, 
53  L.  ed.  230;  United  States  v.  Forrester,  211  U.  S.  399,  29  Sup.  Ct.  Rep. 
132,  53  L.  ed.  245;  United  States  v.  Wells,  192  Fed.  870,  873;  United 
States  V.  Munday,  222  U.  S.  175,  184,  32  Sup.  Ct.  Rep.  53,  56  L.  ed.  1066. 

83a  United  States  v.  Home  Coal  &  Coke  Co.,  200  Fed.  910,  917;  An- 
derson Coal  Company,  41  L.  D.  337. 

84  Kerr  v.  Utah- Wyoming  Imp.  Co.,  2  L.  D.  727;  Kerr  v.  Carlton,  10 
Copp's  L.  O.  255, 

Lindley  on  M. — 73 


§  503         MANNEE  OF  ACQUIRING  TITLE  TO  COAL  LANDS.  1154 

(C)  Final  entries  may  only  be  made  upon  surveyed 
lands. *^ 

(D)  The  tracts  applied  for  must  be  contiguous.^" 

§  503.  Private  entry  under  Revised  Statutes,  sec- 
tion twenty-three  hundred  and  forty-seven.— The  right 
to  enter  coal  lands  under  section  twenty-three  hundred 
and  forty-seven  of  the  Revised  Statutes  may  be  exer- 
cised upon  surv^eyed  lands  without  previous  occupation 
or  improvement.  Necessarily,  the  lands  sought  to  be 
entered  must  be  vacant  and  otherwise  unreserved  and 
unappropriated.  In  other  words,  they  must  be  public 
lands."  They  may  only  be  applied  for  by  government 
subdivisions  and  in  limited  quantities;  that  is,  an  in- 
dividual may  not  acquire  to  exceed  one  hundred  and, 
sixty  acres,  and  an  association  of  persons  not  to  exceed 
three  hundred  and  twenty  acres. 

To  obtain  title  to  lands  under  this  section,  the  appli- 
cant is  required  to  file  with  the  register  of  the  proper 
land  office  a  verified  application,**  describing  the  lands 
sought  to  be  purchased,  his  qualification  under  the  law 
to  make  the  entry,  and  such  other  facts  as  to  the  char- 
acter and  status  of  the  land  as  will  establish  in  the 
applicant  a  prima  facie  right  of  purchase.  He  is  re- 
quired to  show  that  the  lands  are  chiefly  valuable  for 
coal,*^  but  is  not  required  to  prove  that  he  has  actually 
opened  and  improved  a  mine  of  coal  on  the  lands  ap- 
plied for.     This  is  necessary  only  where  the  applicant 

88  In  re  Cameron,  10  L.  D.  195;  In  re  Lyon,  20  L.  D.  556. 

86  In  re  Masterson,  7  L.  D.  172;  S.  C,  on  review,  7  L,  D.  577;  Ken- 
dall V.  Hall,  12  L.  D.  419. 

87  Ante,  §  112. 

88  See  form  in  Circular  Instructions,  35  L.  D.  669. 

88  Ghost  V.  United  States,  168  Fed.  841,  845,  94  C,  C.  A.  53. 


1155  PREFERENTIAL  RIGHT   OF  PURCHASE.  §  504 

asserts  a  preference  right  of  entry,  a  subject  discussed 
in  the  following  sections.'" 

If  the  land  is  clear  on  the  tract-books,  the  register 
certifies  the  fact  to  the  receiver,  and  the  price  is  deter- 
mined according  to  the  rule  announced  in  a  subsequent 
section.®^ 

Payment  must  then  be  made,  whereupon  the  final 
certificate  is  issued,  and  in  due  time  the  patent  follows. 

Private  entry  will  not  be  allowed  so  as  to  embrace 
one  tract  in  the  capacity  of  an  assignee,  and  another 
under  the  individual  right  of  the  purchaser.^' 

Until  application  is  made  to  enter  and  purchase 
under  this  section,  the  claimant  has  no  right  which  is 
worthy  of  recognition.  His  possession,  if  he  has  any, 
must  yield  to  one  who  complies  with  the  law  and  files 
upon  the  land." 

§  504.  Preferential  right  of  purchase  under  Revised 
Statutes,  section  twenty-three  hundred  and  forty-eight. 
In  order  to  exercise  the  preferential  right  of  purchase 
granted  by  section  twenty-three  hundred  and  forty- 
eight,  there  are  two  essential  prerequisites: — 

(1)  The  applicant  must  be  in  the  actual  possession 
of  the  lands  applied  for;^* 

(2)  He  must,  prior  to  final  entry,  have  opened  and 
improved  the  mines  situated  thereon.®^ 

»o  McKibben  v.  Gable,  34  L.  D.  178  j  Lchmer  v.  Carroll,  34  L.  D.  267 j 
S.  C,  on  review,  34  L.  D.  447. 

81  Post,  §  507. 

»2  In  re  Ludlam,  17  L.  D.  22. 

93  Leheart  v.  Dunker,  4  L.  D.  522. 

9*  In  re  Negus,  11  L.  D.  32;  Walker  v.  Taylor,  23  L.  D.  110;  Mc- 
Daniel  v.  Bell,  9  L.  D.  15;  McKibben  v.  Gable,  34  L.  D.  178. 

98  Walker  v.  Taylor,  23  L.  D.  110;  Ouimette  v,  O'Connor,  22  L.  D. 
538;  McKibben  v.  Gable,  34  L.  D.  178. 


§  504         MANNER  OF   ACQUIRING   TITLE  TO   COAL   LANDS.  1156 

The  improvements  made  must  be  such  as  to  clearly 
indicate  good  faith.®* 

A  perfunctory  compliance  with  the  law  in  this  re- 
spect will  not  suffice,  but  a  mine  or  mines  of  coal  must 
in  fact  be  opened  and  improved  on  the  land  claimed." 

A  mere  penetration  of  a  bed  of  coal  by  means  of  a 
drill  so  small  that  the  work  cannot  be  utilized  in  the 
mining  of  coal  from  the  land  is  not  in  itself  the  opening 
and  improving  of  a  mine  or  mines  thereon  within  the 
contemplation  of  the  statute,  and  a  preference  right  of 
entry  is  not  thereby  acquired." 

The  projection  of  underground  workings  from  pri- 
vately owned  ground  into  an  adjoining  tract  of 
public  land  with  a  view  to  extracting  coal  therefrom, 
such  being  the  only  feasible  and  practical  method  of 
opening  up  and  mining  the  coal  from  such  adjoining 
tract,  followed  immediately  by  the  execution  and  filing 
of  a  declaratory  statement  giving  notice  of  the  extent 
of  the  coal  lands  claimed,  constitutes  the  opening  and 
improving  of  a  mine  within  the  meaning  of  the  coal 
land  laws.®' 

In  determining  what  constitutes  good  faith,  the  ap- 
plicant's degree  and  condition  in  life  may  be  consid- 
ered.^°° 

Priority  of  possession  and  improvement,  followed  by 
proper  filing  and  development  of  the  mine  in  good 
faith,  are  the  foundation  of  the  preferential  right.^ 

The  right  to  purchase  coal  lands  is  initiated  by 
the  actual  discovery  of  coal  on  the  land  and  the  per- 

•6  In  re  Negus,  11  L.  D.  32. 

»7  In  re  Filer,  36  L.  D.  360. 

•8  In  re  Thad.  Stevens,  37  L.  D.  723. 

»»  Carthage  Fuel  Company,  41  L.  D.  21. 

100  Watkins  v.  Garner,  13  L..  D.  414. 

1  Bullard  t.  Flanagan,  11  L.  D.  515. 


1157  PREFERENTIAL  RIGHT   OF  PURCHASE.  §  504 

formance  of  some  act  of  improvement  sufficient  to 
give  notice  to  the  world  of  an  intent  to  purchase 
such  lands  as  coal  lands.  The  right  to  purchase 
such  lands  cannot  be  initiated  by  the  filing  of  a  de- 
claratory statement  therefor. 

In  case  of  conflicting  claims  to  coal  lands,  the 
preference  right  is  determined  not  by  the  date  of  the 
filing  of  the  declaratory  statement  ....  but  by 
priority  of  possession  and  improvement.' 

This  right  may  be  exercised  by  an  individual  or  an 
association  of  persons.  When  exercised  by  an  individ- 
ual, it  is  limited  to  one  hundred  and  sixty  acres,  and 
when  by  an  association  of  persons,  ordinarily  to  three 
hundred  and  twenty  acres.  Entries  by  associations 
consisting  of  not  less  than  four  persons  may,  however, 
be  extended  to  six  hundred  and  forty  acres,  after  they 
shall  have  expended  not  less  than  five  thousand  dollars 
in  working  and  improving  such  mines. 

The  expenditure  of  five  thousand  dollars  required  by 
section  2348  of  the  Revised  Statutes  to  be  made  by  an 
association  of  four  or  more  qualified  persons  seeking  to 
acquire  title  to  six  hundred  and  forty  acres  of  coal 
lands  is  a  condition  precedent  to  the  right  to  enter,  but 
not  a  condition  precedent  to  the  right  to  file  a  declara- 
tory statement.  A  qualified  association  upon  opening 
and  improving  a  mine  accompanied  by  actual  posses- 
sion and  filing  a  declaratory  statement  becomes  pos- 
sessed of  the  right  to  assert  exclusive  claim  to  six  hun- 
dred and  forty  acres  of  coal  lands;  and  by  thereafter 
seasonably  expending  five  thousand  dollars  in  woiking 
and  improving  the  mine,  becomes  invested  with  the 
right  to  apply  for,  pay  for  and  enter  such  lands.* 

2  Reed  v.  Nelson,  29  L.  D.  615,  619. 

a  Carthage   Fuel   Company,  41   L.  D.   21. 


§  505         MANNER  OF   ACQUIRING   TITLE   TO   COAL   LANDS.  1158 

The  preferential  right  may  be  initiated  by  entering 
into  possession  and  improving  unsurveyed  lands.*  The 
right,  however,  may  only  be  perfected  after  the  lands 
shall  have  been  surveyed  and  the  township  plat  filed 
in  the  local  land  office.® 

§  505.  The  declaratory  statement.— If  the  prefer- 
ential right  is  initiated  upon  sur\^eyed  lands,  the  claim- 
ant must  present  to  the  register  of  the  proper  land 
office,  within  sixty  days'  after  the  date  of  actual  pos- 
session, and  the  commencement  of  improvements  upon 
the  land,  his  declaratory  statement  of  the  facts  upon 
which  he  bases  his  right. 

The  preferential  right  is  not  created  or  initiated  by 
the  filing  of  this  statement.  It  is  acquired  only  by 
opening  and  improving  and  having  possession  of  a 
mine  or  mines  of  coal  on  the  public  lands.  In  the  ab- 
sence of  either  of  the  required  conditions,  there  is  no 
preferential  right  of  entry  under  the  statute.  The 
office  of  the  declaratory  statement  is  to  preserve  the 
right,  not  to  create  it.  If  the  right  does  not  exist,  the 
declaratory  statement  has  no  office  to  perform.' 

While  in  possession  and  engaged  in  development  the 
claimant  has  a  right  to  sell  such  coal  as  is  encountered 
and  removed  in  the  development  working.* 

4  Holladay  Coal  Co.  v.  Kirker,  20  Utah,  192,  57  Pac.  882. 

6  Under  section  2401  of  the  Revised  Statutes  as  amended  August  20, 
1894  (28  Stats,  at  Large,  423;  Comp.  Stats.  1901,  p.  1477;  6  Fed.  Stats. 
Ann.  375),  parties  possessed  of  coal  lands  which  are  unsurveyed  may  ex- 
pedite the  survey  by  application  to  the  surveyor-general  and  making  a 
deposit  to  cover  costs. 

6  In  re  Morrison,  36  L.  D.  126;  S.  C,  on  review,  36  L.  D.  319. 

7  McKibben  v.  Gable,  34  L.  D.  178;  Lehmer  v.  Carroll  (on  review),  34 
L.  D.  447;  In  re  Morrison,  36  L.  D.  126;  S.  C,  on  review,  36  L.  D.  319; 
In  re  Stevens,  37  L.  D.  723 ;  Conway  v.  Brooks,  39  L.  D.  337. 

•  Ghost  v.  United  States,  168  Fed.  841,  846, 


1159  ASSIGNABILITY    OP    INCHOATE    RIGHTS.  §  506 

Where  the  lands  upon  which  the  right  is  initiated 
by  occupation  and  development  are  unsurveyed,  the 
time  within  which  the  declaratory  statement  is  to  be 
filed  commences  to  run  from  the  date  the  approved 
township  plat  is  received  at  the  local  land  office.^ 

Failure  to  file  this  instrument  within  the  time  speci- 
fied renders  the  land  subject  to  entry  by  another,  if  he 
has  complied  with  the  law;"  but  in  the  absence  of  an 
adverse  claimant,  the  right  to  complete  the  entry  is  not 
forfeited. ^^ 

A  second  filing  for  the  same  tract  will  not  be  allowed 
to  one  who  has  failed  to  comply  with  the  law  in  the 
first  instance. ^^ 

The  statement  must  be  verified  by  the  oath  of  the  ap- 
plicant. This  duty  cannot  be  delegated  to  others;" 
but  after  the  same  is  filed,  the  subsequent  acts  required 
to  complete  the  entry  may  be  performed  by  a  duly 
authorized  agent,  acting  under  a  power  of  attorney.'* 

§  506.  Assignability  of  inchoate  rights.— An  in- 
choate right  or  privilege  flowing  from  an  accepted  ap- 
plication or  declaratory  statement  may  be  assigned  to 
one  who  possesses  the  necessary  legal  qualifications;'^ 

9  Rev.  Stats.,  §2439;  17  Stats,  at  Large,  607;  Comp.  Stats.  1901,  p. 
1440;  5  Fed.  Stats.  Ann.  56. 

10  Brennan   v.   Hume,   10   L.   D.    160;    O'Gorman   v.    Mayfield,   19   L. 

D.  522. 

11  In  re  GrunsfeH,  10  L.  D.  508;  In  re  Morrison   (on  review),  36  L. 

D.  323. 

12  Id. 

13  White  Oaks  Imp.  Co.,  13  Copp's  L.  0.  159;  In  re  Hallowell,  2  L. 
D.  735. 

14  Rose  V.  Dineen,  26  L.  D.  107. 

For  forms  of  declaratory  statements,  and  the  manner  of  procedure 
generally,  see  the  Coal  Land  Circular  Instructions,  which  appear  in  full 
in  the  Appendix. 

16  Kerr  v.  Carlton,  10  Copp's  L.  O.  255;  Guillet  v.  Durango  Land  & 
Coal  Co.,  26  L.  D.  413;  par.  37,  Circular  Instructions  (Coal  Lands). 
See  Appendix. 


§  507         MANNER  OF   ACQUIRING   TITLE   TO   COAL    LANDS.  1160 

but  siicli  assignment,  if  the  assignee  perfects  the  entry, 
would  extinguish  the  right  of  both  parties  to  purchase 
lands  under  the  coal  land  laws,  and  both  would  there- 
after be  disqualified  from  making  further  entries. 
However,  the  sale  of  an  option  to  purchase,  which  is 
not  taken  advantage  of,  does  not  disqualify  a  claimant 
to  enter  coal  land/® 

Where  such  assignments  are  made,  the  purchaser 
may  avail  himself  of  the  improvement  and  develop- 
ment of  his  assignor. 

§  507.  The  purchase  price. — Under  section  twenty- 
three  hundred  and  forty-seven  of  the  Revised  Statutes, 
the  minimum  price  fixed  by  law  to  be  paid  for  coal 
lands  depends  upon  the  situation  of  the  land  with  re- 
spect to  completed  railroad." 

If  within  fifteen  miles  of  such  road,  the  entryman 
must  pay  at  the  rate  of  not  less  than  twenty  dollars 
per  acre.  If  more  than  fifteen  miles,  not  less  than  ten 
dollars  per  acre.  The  distance  from  the  road  (not  the 
distance  from  the  nearest  shipping-point)  is  the  test.^' 

The  status  of  the  land  at  the  date  of  final  proof  and 
payment,  with  respect  to  this  distance,  determines  the 
minimum  price  thereof,  irrespective  of  the  status  when 
the  preference  right  is  initiated  or  acquired." 

Where  the  land  lies  partly  within  fifteen  miles  and  in 
part  outside  such  limit,  the  maximum  price  must  be 
paid  for  all  legal  subdivisions,  the  greater  part  of 
which  lie  within  fifteen  miles  of  such  road. 

16  Eeed  v.  Nelson,  29  L.  D.  615. 

17  lu  re  Foster,  2  L.  D.  730. 

18  In  re  Conant,  29  L.  D.  637, 

19  In  re  Colton,  10  L.  D.  422;  In  re  Largent,  13  L.  D.  397;  In  re 
Burgess,  24  L.  D.  11. 


1161  THE  PURCHASE  PRICE.  §  507 

The  term  "completed  railroad"  is  construed  by  the 
department  to  mean  one  which  is  actually  constructed 
on  the  face  of  the  earth. 

For  many  years,  in  fact,  until  July,  1906,  it  was  the 
practice  to  dispose  of  coal  lands  at  these  minimum 
prices,  regardless  of  the  quality  of  the  deposit  or  its 
market  value. ^"^  Since  that  date  lands  which  have  been 
classified  and  valued  have  been  disposed  of  at  fixed 
prices  based  upon  the  value  of  the  coal  contained  in 
the  land.  On  July  26,  1906,  large  areas  known  or  sup- 
posed to  contain  coal  were  withdrawn  from  entry  and 
this  withdrawal  was  followed  by  others.  At  the  same 
time  the  geological  survey  began  an  appraisement  of 
these  withdrawn  lands,  which  were  returned  to  entry 
as  rapidly  as  they  were  classified  and  appraised.  At 
the  time  this  policy  was  established  the  geological 
survey  had  examined  only  a  very  small  part  of  the 
coal-fields  in  the  public  land  states.  From  that  time, 
however,  the  examination  of  coal  lands  was  increased 
until  it  became  necessary,  in  order  to  unify  and  cor- 
relate the  work,  to  create  a  board  of  three  members, 
known  as  the  land  classification  board,  who  should  pre- 
pare or  revise  all  classifications  made.  The  work  of 
this  board  resulted  in  the  ''Regulations  on  the  Classi- 
fication and  Valuation  of  Coal  Lands,"  approved  by 
the  secretary  of  the  interior,  April  10,  1909.^° 

i»a  In  re  Plisted,  40  L.  D.  610. 

20  37  L.  D.  653  (amended  38  L.  D.  452).  We  are  indebted  for  this 
statement  to  the  contributions  of  Mr.  Geo.  H.  Ashley,  "The  Value  of 
Coal  Land,"  and  of  Mr.  Cassias  A.  Fisher,  "Depth  and  Minimum  Thick- 
ness of  Beds  as  Limiting  Factors  in  Valuation,"  comprising  Bulletin 
424  of  the  United  States  Geological  Survey.  These  reports  are  of  the 
highest  scientific  and  economic  value.  They  explain  the  reasons  upon 
which  classifications  are  based,  the  factors  -which  enter  into  valuation, 
and  other  details  which  are  highly  instructive. 


§  507         MANNER  OF   ACQUIRING   TITLE   TO   COAL   LANDS.  1162 

As  we  have  heretofore  pointed  out,"  methods  of 
classification  and  valuation  of  coal  lands  are  prescribed 
from  time  to  time  by  the  department  of  the  interior, 
the  departmental  regulations  being  subject  to  change 
as  experience  suggests.  The  latest  regulations  on  the 
subject  will  be  found  in  the  appendix,  and  are  contained 
in  circular  issued  February  20,  1913."  Briefly  stated, 
valuations  are  arrived  at  by  a  consideration  of  the  fol- 
lowing elements  among  others:  (a)  thickness,  (b)  heat 
units,  (c)  character  of  coal,  i.  e.,  coking,  smokeless,  or 
anthracite  or  other  enhancing  qualities,  with  deduc- 
tions for  impurities,  (d)  proximity  to  railroads  with 
maximum  limit  of  three  hundred  dollars  per  acre,  ex- 
cept in  districts  which  contain  large  coal  mines,  where 
the  character  and  extent  of  the  coal  are  well  known.^^ 

Every  individual  case  must  be  dealt  with  according 
to  its  own  peculiarities  and  environment.  Valuations 
made  at  one  time  may  be  changed  at  another. 

It  will  thus  be  seen  that  factors  which  enter  into  the 
method  of  valuing  coal  deposits  for  purposes  of  sale 
by  the  government  are  numerous.  Mr.  Ashley,  in  Bul- 
letin No.  424  of  the  Geological  Survey,^*  states  that — • 

Among  the  factors  atfecting  the  price  of  coal  land 
are  the  character  and  amount  of  coal,  competition, 
knowledge  of  coal  content,  accessibility,  cost  of  min- 
ing and  marketing,  demand,  and  artificial  and  legal 
restrictions.  Each  of  these  factors  in  turn  is  com- 
posed of  many  elements. 

21  Ante,  §  496. 

22  41  L.  D.  528. 

23  Mr.  Ashley  notes  government  valuations  in  Wyoming  ranging  from 
three  hundred  and  seventy  dollars  to  four  hundred  and  ten  dollars  and 
from  two  hundred  and  twenty-five  dollars  to  four  hundred  and  thirty 
dollars  per  acre.     Bulletin,  424,  p.  45. 

2*  Page  15.  Attention  is  also  called  to  Bulletin  537  of  the  Geologi- 
cal Survey,  where  the  subject  is  fully  (Jiscussed. 


1163  THE  FINAL  ENTRY CONCLUSIONS.       §§  508,  509 

§  508.  The  final  entry.— Within  llie  time  fixed  by 
tlie  law,  i.  e.,  one  year  from  filing  the  declaratory  state- 
ment, the  claimant  must  make  his  application  to  pur- 
chase, and  submit  proof  showing  compliance  with  the 
law.  If  there  is  no  opposition,  he  is  permitted  to  make 
entry  and  payment.  If  there  are  protests  or  adverse 
claims,  a  hearing  is  had,  and  the  rights  determined 
within  the  department. 

§  509.  Conclusions. — It  will  be  observed  that  the 
nature  of  the  inchoate  estate  created  by  compliance 
with  the  coal  laws  bears  a  striking  analogy  to  that  con- 
ferred by  the  former  agricultural  pre-emption  act.  The 
same  analogy  exists  as  to  proceedings  to  acquire  the 
title. 

The  only  feature  in  common  between  the  coal  land 
system  and  the  general  mining  laws  is,  that  in  both  dis- 
covery is  required  as  a  condition  precedent  to  the  ac- 
quisition of  title. 

The  extralateral  right  has  no  place  in  the  coal  laws. 
Although  many  coal  veins  occupy  a  more  or  less  in- 
clined position,  the  only  class  of  entries  allowed  is  by 
government  subdivisions,  and  the  entryman  obtains 
title  only  to  whatever  lies  within  vertical  planes  drawn 
through  his  surface  boundaries. 

In  the  case  of  mining  claims,  certain  prescribed  work 
must  be  perfonned  annually  in  order  to  perpetuate  the 
estate  acquired  by  location.  A  locator  need  never 
apply  for  a  patent.  Under  the  coal  laws,  no  particular 
amount  of  expenditure  is  required,  except  where  an 
association  of  not  less  than  four  persons  seeks  to  enter 
six  hundred  and  forty  acres,  it  is  required  that  they 
must  produce  proof  of  improvements  to  the  extent 
of  five  thousand  dollars.  A  patent  must  be  applied  for 
within  a  year  from  the  filing  of  the  declaratory  state- 


§  509         MANNER  OF   ACQUIRING   TITLE  TO   COAL   LANDS.  1164 

ment,  in  case  of  preferential  rights,  under  section 
twenty-three  hundred  and  forty-eight  of  the  Eevised 
Statutes.  In  the  case  of  private  entries  under  section 
twenty-three  hundred  and  forty-seven,  the  first  step  is 
the  application  for  patent. 


CHAPTER    VI. 

SALINES. 


S  513.  Governmental  policy  with 
reference  to  salines. 

§  514.  The  act  of  January  12, 
1877 — Territorial  limit 
of  its  operation. 


§  514a.  The    act    of    January    31, 

1901. 
§  515.     What  embraced  within  tha 

term  "salines." 


§  513.  Governmental  policy  with  reference  to  sa- 
lines.— Salt  is  essentially  a  mineral/  and  salt  lakes  and 
salt  springs  legitimately  fall  within  the  designation  of 
mineral  substances.^ 

Prior  to  the  passage  of  the  act  of  January  31,  1901, 
to  be  hereafter  referred  to,  lands  of  this  character  were 
classed  by  themselves,  and  were  not  subject  to  entr^^ 
under  any  law  operative  throughout  the  public  land 
states.  The  policy  of  the  government  since  the  acquisi- 
tion of  the  Northwest  territory  and  the  inauguration  of 
the  federal  land  system,  and  until  the  passage  of  the 
act  referred  to,  had  been  to  reserve  salines  and  salt 
springs  from  sale.^  The  object  of  this  reserv^ation  was 
to  preserve  them  for  future  states.  A  brief  reference 
to  the  legislation  in  this  behalf  may  be  of  historical 
value. 

1  Garrard  v.  Silver  Peak  Mines,  82  Fed.  578,  589;  S.  C,  on  appeal, 
94  Fed.  983,  36  C.  C.  A.  603;  Eagle  Salt  Works,  Copp's  Min.  Lands,  336. 

2  State  V.  Parker,  61  Tex.  265. 

3  Morton  v.  State  of  Nebraska,  21  WaU.  660,  22  L.  ed.  639,  12  Morr. 
Min.  Rep.  541;  Salt  Bluff  Placer,  7  L.  D.  549;  Cole  v.  Markley, 
2  L.  D.  847;  Southwestern  M.  Co.,  14  L.  D.  597;  Garrard  v.  Siher 
Peak  Mines,  82  Fed.  57&;  S.  C,  on  appeal,  94  Fed.  983,  36  C.  C.  A. 
603;  In  re  Geissler,  27  L.  D.  515;  Oklahoma  Territory  v.  Brooks,  29  L. 
D.  533;  In  re  Territory  of  New  Mexico,  31  L.  D.  389;  Hall  v.  Litchfield, 
Copp's  Min.  Lands,  333;  Utah  Salt  Lands,  13  Copp's  L.  O.  53;  Terri- 
tory of  New  Mexico,  35  L.  D.   1. 

(1165) 


§  514  SALINES.  1166 

§  514.  The  act  of  January  12,  1877— Territorial 
limit  of  its  operation. — The  act  of  Jaunary  12,  1877,* 
was  the  first  to  make  provision  for  the  general  disposi- 
tion of  lands  containing  salt  springs  and  deposits  The 
act  marked  a  departure  from  the  government's  policy 
of  reservation  from  sale  of  this  class  of  lands. 

Prior  to  that  date  many  states  received  grants  of 
salt  springs.  Among  these  we  note  Ohio,^  Indiana,® 
Alabama,'^  and  Illinois.*  Under  the  acts  providing  for 
the  admission  of  Missouri,^  Arkansas,"  Michigan," 
Iowa  and  Florida,"  Wisconsin,"  Minnesota,"  Kansas," 
Oregon,"  Nebraska"  and  Colorado,"  each  of  these 
states  received  a  grant  of  salt  springs  with  lands  ad- 
joining them. 

Prior  to  the  act  of  1901,  there  was  no  authority  for 
the  disposal  of  lands  chiefly  valuable  for  their  salt  de- 
posits or  salt  springs  belonging  to  the  United  States, 
except  the  act  of  January  12, 1877." 

*  19  Stats,  at  Large,  221. 
s  2  Stats,  at  Large,  173. 
8  3  Stats,   at  Large,  289. 

7  3  Stats,  at  Large,  489. 

8  3  Stats,  at  Large,  428. 
8  3  Stats,  at  Large,  545. 
10  5  Stats,  at  Large,  58. 
"  5  Stats,  at  Large,  59. 

12  5  Stats,  at  Large,  789. 

13  9  Stats,  at  Large,  56. 
1*  11  Stats,  at  Large,  166. 

15  11  Stats,  at  Large,  269. 

16  11  Stats,  at  Large,  383;  State  of  Oregon  v.  Jones,  24  L.  D.  118. 

17  13  Stats,  at  Large,  47. 

18  18  Stats,  at  Large,  474;  State  of  Colorado,  10  L.  D.  222.  For 
list  of  states  admitted  prior  to  1877,  see  Hall  v.  Litchfield,  2  Copp's  L. 
O.  179. 

19  Hall  V.  Litchfield,  Copp's  Min.  Lands,  333;  Salt  Bluff  Placer,  7  L. 
D.  549;  Southwestern  M.  Co.,  14  L.  D.  597;  In  re  Geissler,  27  L.  D.  515. 


1167  THE  ACT  OF  JANUARY  12,  1877.  §  514 

This  act'**  provided  for  their  sale  at  public  auction 
at  not  less  than  one  dollar  and  twenty-five  cents  per 
acre,  or  at  private  sale  at  the  same  minimum  rate,  in 
the  event  sales  were  not  effected  at  public  auction;  but 
the  operation  of  the  act  was  confined  to  states  which 
have  had  grants  of  salines  which  have  been  fully  satis- 
fied, or  under  which  the  right  of  selection  might  expire 
by  efflux  of  time.  The  act,  therefore,  did  not  apply  to 
the  then  territories;^^  nor  did  it  apply  to  Mississippi, 
Louisiana,  California,  Nevada,"  North  and  South  Da- 
kota, Montana,  Washington,  Idaho,  Utah,  or  Wyoming, 
none  of  which  had  theretofore  received  a  grant  of  such 
lands.  Under  act  of  June  21,  1898,"  all  saline  lands 
within  the  territory  of  New  Mexico  were  granted  to  the 
territorj^^*  But  this  grant  was  repealed  on  the  admis- 
sion of  the  territory  into  the  Union,  which  act  also  re- 
served all  salines  to  await  further  congressional  ac- 
tion." On  Utah's  admission  that  state  received  a 
grant,  among  others,  of  one  hundred  and  ten  thousand 
acres  to  be  selected  and  located  as  provided  and  in- 
cluding all  the  saline  lands  in  said  state.  The  supreme 
court  of  Utah  held  that  this  grant  conveyed  all  the 
saline  lands  in  addition  to  the  one  hundred  and  ten 
thousand  acres.^®  The  supreme  court  of  the  United 
States  reversed  this  ruling  and  held  the  saline  lands 

20  19  stats,  at  Large,  p.  221;  Corap.  Stats.  1901,  p.  1547;  5  Fed. 
Stats.  Ann.  48. 

21  Utah  Salt  Lands,  13  Copp's  L,  O.  53;  Circular  Instructions,  Apr. 
10,  1877,  4  Copp's  L.  O.  21;  In  re  Geissler,  27  L.  D.  515;  Oklahoma 
Territory  v.  Brooks,  29  L.  D.  533. 

22  Southwestern  M.  Co.,  14  L.  D.  597;   Public  Domain,  696. 

23  30  Stats,  at  Large,  484;   6  Fed.  Stats.  Ann.  482. 
2*  Territory  of  New  Mexico,  35  L.  D.  1. 

26  36   Stats,   at  Large    (part   1),  p.   562;  §18,  p.   568;    Comp.   Stats. 
(Supp.  1911),  p.  659;   1  Fed.  Stats.  Ann.   (Supp.  1912),  p.  367. 
26  State  of  Utah  v.  Montello  Salt  Co.,  34  Utah,  458,  98  Pac.  549,  551. 


§  514a  salines.  1168 

intended  to  be  transferred  and  selected  were  included 
in  the  one  hundred  and  ten  thousand  acres.^^ 

The  act  of  January  12, 1877,  however,  has  been  super- 
seded by  the  act  of  January  31,  1901,  which  inaugu- 
rated a  distinct  change  of  policy. 

§  514a.  The  act  of  January  31,  1901. — On  January 
31,  1901,  congress  enacted  the  following  law: — 

That  all  unoccupied  lands  of  the  United  States  con- 
taining salt  springs,  or  deposits  of  salt  in  any  form, 
and  chiefly  valuable  therefor,  are  hereby  declared  to 
be  subject  to  location  and  purchase  under  the  pro- 
visions of  the  law  relating  to  placer  mining  claims; 
provided,  that  the  same  person  shall  not  locate  or  en- 
ter more  than  one  claim  hereunder.^^ 

Upon  the  passage  of  this  act,  the  secretary  of  the  in- 
terior promulgated  the  following  circular  instruc- 
tions:— 

1.  Under  this  act  the  provisions  of  the  law  relating 
to  placer-mining  claims  are  extended  to  all  states  and 
territories  and  the  district  of  Alaska,  so  as  to  permit 
the  location  and  purchase  thereunder  of  all  unoccu- 
pied public  lands  containing  salt  springs,  or  deposits 
of  salt  in  any  form,  and  chiefly  valuable  therefor, 
with  the  proviso,  "That  the  same  person  shall  not 
locate  or  enter  more  than  one  claim  hereunder. ' ' 

2.  Rights  obtained  by  location  under  the  placer 
mining  laws  are  assignable  and  the  assignee  may 
make  the  entry  in  his  own  name;  so,  under  this  act, 
a  person  holding  as  assignee  may  make  entry  in  his 
own  name, — provided,  he  has  not  held  under  this  act, 
at  any  time,  either  as  locator,  assignee  or  entryman, 
any  other  lands;  his  right  is  exhausted  by  having 
held  under  this  act  any  particular  tract,  either  as 

27  Montello  Salt  Co.  v.  Utah,  221  U.  S.  452,  453,  31  Sup.  Ct.  Eep.  706, 
55  L.  ed.  810. 

28  31  Stats,  at  Large,  p.  745;  Comp.  Stats.  1901,  p.  1435;  5  Fed. 
Stats.  Ann,  48. 


1169  THE  ACT  OF  JANUARY  31,  1901.  §  514a 

locator,  assignee,  or  entryman,  either  as  an  individ- 
ual or  as  a  member  of  an  association.  It  follows, 
therefore,  that  no  application  for  patent  or  entry, 
made  under  this  act,  shall  embrace  more  than  one 
single  location. 

3.  In  order  that  the  conditions  imposed  by  the 
proviso,  as  set  forth  in  the  above  paragraph,  may 
duly  appear,  the  notice  of  location  presented  for 
record,  the  application  for  patent,  and  the  applica- 
tion to  purchase  must  each  contain  a  specific  state- 
ment under  oath  by  each  person  whose  name  ap- 
pears therein  that  he  never  has,  either  as  an 
individual  or  as  a  member  of  an  association,  lo- 
cated, applied  for,  entered,  or  held  any  other  lands 
under  the  provisions  of  this  act.  Assignments 
made  by  persons  who  are  not  severally  qualified  as 
herein  stated  will  not  be  recognized.^* 

Henceforward,  except  in  the  state  of  New  Mexico, 
where,  by  the  act  admitting  it  into  the  Union,  saline 
lands  were  reser\^ed  for  future  congressional  action,^" 
the  general  mining  laws  applicable  to  the  discovery 
and  location  of  placers  apply,  with  one  marked  ex- 
ception, that  the  same  person  may  not  locate  nor  en- 
ter more  than  one  claim,  thus  placing  the  location  of 
salt  lands  in  this  behalf  on  the  same  plane  with  coal 
and  homestead  entries.  The  right  to  locate  is  ex- 
hausted by  the  entry  of  an  individual  claim.  The 
rules  in  this  regard  with  reference  to  coal  land  apply 
by  analogy  to  some  extent  at  least. 

This  act  would  from  its  phraseology  seem  to  be 
operative  in  the  states  which  have  heretofore  been 
excepted  from  the  operation  of  the  general  mining 
laws, — viz.,  Michigan,  Minnesota,  Wisconsin,  Mis- 
souri, Kansas  and  Alabama.^^    In  other  words,   the 

29  31  L.  D.  131. 
so  Ante,  §  514. 
81  Ante,  §  75. 

Lindle7  on  M. — 74 


§  515  SALINES.  1170 

general  mining  laws,  so  far  as  tliey  are  applicable  to 
the  appropriation  of  saline  lands,  are  in  force  in  all 
the  public  land  states  enumerated  in  a  previous  sec- 
tion,^^  except  New  Mexico,  wherein  there  are  unoc- 
cupied public  lands  of  the  United  States  containing 
salt  springs  or  deposits  of  salt  in  any  form. 

§  515.    What  embraced  within  term  "salines." — 

Although  different  acts  of  congress  dealing  with 
saline  lands  contain  different  phraseology,  the  terms 
are  interchangeable,  and  were  intended  to  embrace 
the  same  quality  of  land. 

The  lands  falling  within  these  interchangeable 
terms  are  thus  defined  by  the  secretary  of  the  inter- 
ior:— 

Congress  had  in  contemplation  throughout 
merely  common  salt  or  chloride  of  sodium  in  its 
various  forms  of  existence  or  deposit,  and  that  only 
lands  containing  commercially  valuable  quantities 
thereof  are  intended  to  be  included. ^^ 

Deposits  of  rock  salt  fall  within  the  designation 
of  salines,  as  do  salt  springs,  from  which  salt  for 
table  or  other  economic  use  is  obtained,"  and  salt 
beds,^'  although  Commissioner  McFarland  enter- 
tained the  view  that  a  ledge  of  rock  salt  might  be 
located  under  the  lode  laws.^° 

This  we  think  would  now  be  the  rule"  were  it  not 
for  the  express  language  of  the  statute  which  pro- 

82  Ante,  §  20.     Circulars,  Nov.  14,  1901,  31  L.  D.  130,  131. 
33  Territory  of  New  Mexico,  35  L.  D.  1;  Lovely  Placer  Claim,  35  L. 
D.  426. 

Si  Lovely  Placer  Claim,  35  L.  D,  426. 
86  Southwestern  M.  Co.,  14  L.  D.  597. 
86  In   re  Megarrigle,   9   Copp's  L.  O.   113. 
•T  Ante,  §  323. 


1171  THE  TERM  "salines."  §515 

vides  for  the  location  of  salt  deposits  under  the  pro- 
visions of  the  law  applicable  to  placers.^^ 

As  to  other  so-called  mineral  springs,  Secretary 
Noble  expressed  an  opinion,  which  is  probably  a  mere 
dictu7n,  that  they  also  should  be  classified  as  salines;^* 
but  Secretary  Teller  ruled  that  lands  containing 
mineral  springs  not  of  a  saline  character  are  subject 
to  sale  under  the  agricultural  land  laws/" 

Sulphur  springs  are  not  regarded  as  saline." 

Tracts  of  land  returned  by  the  surv^eyor-general  as 
saline  may  be  shown  to  be  agricultural  in  character, 
and  will  then  be  subject  to  entry  under  the  agricul- 
tural land  laws."  In  other  words,  the  return  of  the 
surveyor-general  concludes  no  one." 

The  act  of  January  31,  1901,  provides  that  salt 
springs,  or  deposits  of  salt  in  any  form,  and  chiefly 
valuable  therefor,  are  subject  to  appropriation  as 
placers."  This  means,  of  course,  common  salt  or  de- 
posits from  which  chloride  of  sodium  for  table  or 
economic  use  is  obtained.  This  class  of  deposits  is 
excepted  from  the  operation  of  railroad  land  grants." 

38  Ante,  §  514a. 

39  Southwestern  M.  Co.,  14  L.  D.  597. 

<o  Pagosa  Springs,  1  L.  D.  562.  See,  also,  Morrill  v.  Margaret  M.  Co., 
11  L.  D.  563. 

*i  Commissioner's  Letter,  Copp's  Min.  Dec.  22. 

*2  Cole  V.   Markley,  2  L.   D.  847. 

<3  Ante,  §  106, 

**  31  Stats,  at  Large,  p.  745;  Comp.  Stats.  1901,  p.  1435;  5  Fed. 
Stats.  Ann.  48. 

*6  Elliott  V.  Southern  Pacific  E.  R.,  35  L.  D.  149. 


CHAPTER   YIL 

MILLSITES. 


§  519.  The  law  relating  to  mill- 
sites. 

§  520,  Different  classes  of  mill- 
sites. 

§  521.  Eight  to  millsite — How  in- 
itiated. 

§  522.  Location  of  millsite  with 
reference  to  lode. 

§  523.     Nature  of  use  required  in 


case  of  location  by  lode 
proprietor. 

§  524.  Millsites  used  for  quartz- 
mill  or  reduction  works 
disconnected  with  lode 
ownership. 

§  525.  Location  of  junior  lode- 
claims  conflicting  with 
senior  millsites. 


§  519.  The  law  relating  to  millsites. — Millsites, 
while  they  are  frequently  important  accessions  to- 
mining  rights,  occupy  a  relatively  subordinate  posi- 
tion in  the  federal  mining  system.  Prior  to  the  pas- 
sage of  the  mining  laws,  they,  in  common  with  many 
other  privileges  asserted  on  the  public  domain,  were 
regulated  exclusively  by  neighborhood  customs  and 
local  rules,  not  necessarily  under  the  name  of  mill- 
sites,  but  as  surface  adjuncts  to  located  lodes. 

Until  the  act  of  May  10,  1872,  was  passed  there  was 
no  law  by  which  title  to  them  could  be  obtained.  Sec- 
tion fifteen  of  that  act  provides  a  method,  which  is 
perpetuated  in  section  twenty-three  hundred  and 
thirty-seven  of  the  Revised  Statutes.  This  section  is 
as  follows: — 

Where  nonmineral  land  not  contiguous  to  the 
vein  or  lode  is  used  or  occupied  by  the  proprietor 
of  such  vein  or  lode  for  mining  or  milling  purposes, 
such  nonadjacent  surface  ground  may  be  embraced 
and  included  in  an  application  for  a  patent  for 
such  vein  or  lode,  and  the  same  may  be  jDatented 
therewith,  subject  to  the  same  preliminary  require- 
ments as  to  survey  and  notice  as  are  applicable  to 
veins  or  lodes;  but  no  location  hereafter  made  of 

(1172) 


1173  CLASSES  OF  MILLSITES.  §  520 

such  nonadjacent  land  shall  exceed  five  acres,  and 
payment  for  the  same  must  be  made  at  the  same 
rate  as  fixed  by  this  chapter  for  the  superficies  of 
the  lode.  The  owner  of  a  quartz-mill  or  reduction 
works  not  owning  a  mine  in  connection  therewith 
may  also  receive  a  patent  for  his  millsite,  as  pro- 
vided in  this  section. 

§  520.  Different  classes  of  millsites. — It  will  thus 
be  obser^^ed  that  the  law  divides  patentable  millsites 
into  two  classes: — 

(1)  Such  as  are  used  and  occupied  by  the  proprie- 
tor of  a  vein  or  lode  for  mining  or  milling  purposes; 

(2)  Such  as  have  thereon  quartz-mills  or  reduction 
works,  the  ownership  of  which  is  disconnected  with 
the  ownership  of  a  lode  or  vein.^ 

The  limit  as  to  area  and  price  per  acre  is  the  same 
in  both  classes,  and  the  requirement  that  the  lands 
embraced  therein  shall  be  nonmineral  applies  equally 
to  each  class. 

With  reference  to  the  number  of  millsites  one  may 
locate  in  connection  with  the  ownership  of  a  number 
of  lode  claims,  the  popular  impression  for  a  long  time 
obtained  that  for  each  lode  claim,  contiguous  or  non- 
contiguous, the  lode  claimant  was  entitled  to  a  mill- 
.site,  and  it  is  quite  common  to  find  a  series  of  five- 
acre  tracts  located  side  by  side  as  millsites  equal  in 
number  to  the  claims  owned.  As  to  this  practice  the 
land  department  thus  states  its  views: — 

The  manifest  purpose  of  the  first  clause  of  the 
section  is  to  permit  the  proprietor  of  a  lode  mining 
claim  to  acquire  a  small  tract  of  noncontiguous 
nonmineral  land  as  directly  auxiliar>^  to  the  prose- 
cution of  active  mining  operations  upon  his  lode 

1  Rico   Townsite,   1   L.   D.   556;    Hartman   v.   Smith,   7   Mont.    19,    14 
Pac.  648;  Hamburg  M.  Co.  t.  Stephenson,  17  Nev.  449,  30  Pae.  1088. 


§  520  '  MILLSITES.  1174 

claim  or  for  the  erection  of  quartz-mills  or  reduc- 
tion works  for  the  treatment  of  the  ore  produced  by 
such  operation.  The  area  of  such  additional  tract 
is  by  the  terms  of  the  statute  restricted  to  five 
acres  as  obviously  ample  for  either  purpose.  The 
logical  inference  is  that  the  millsite  provision  is 
intended  solely  to  subserve  a  recognized  practical 
necessity  contemplating  an  accession  for  specified 
purposes  to  acquired  mining  rights,  and  is  not  a 
provision  for  the  acquisition  of  merely  additional 
superficies  in  connection  with  each  lode  location. 
Whilst  no  fixed  rule  can  well  be  established,  it 
seems  plain  that  ordinarily  one  millsite  affords 
abundant  facility  for  the  promotion  of  mining 
operations  upon  a  single  body  of  lode  claims. 
There  is  nothing  in  the  language  or  reason  of  the 
statute  to  permit  a  millsite  to  be  taken  and  acquired 
in  connection  with  each  mining  claim  of  a  group. 
A  separate  millsite  cannot,  therefore,  be  regarded 
or  allowed  as  complementary  to  each  lode  claim  in 
a  group.^ 

The  application  for  patent  which  induced  this  ex- 
pression of  opinion  was  one  in  which  the  owner  of 
eighteen  lode  claims  had  located  eighteen  millsites 
around  two  arms  of  a  horseshoe  formed  by  the  navi- 
gable waters  of  Copper  Harbor,  an  inlet  of  the  North 
Pacific  Ocean,  Alaska.  None  of  the  millsites  were 
actually  used  for  any  purpose. 

There  can  be  but  little  exception  taken  to  the  gen- 
eral rule  stated  in  the  above-quoted  decision.  It  is 
manifest  that  where  the  owner  of  a  group  of  lode 
claims  of  such  a  nature  and  so  situated  that  a  larger 
area  than  a  single  millsite  is  reasonably  necessary 
for  the  proper  and  convenient  working  of  the  claims 
and  the  reduction  and  treatment  of  the  ores,  there  is 
no  disposition  in  the  land  department  to  limit  the 

2  Alaska  Copper  Co.,  32  L.  D.  128. 


1175  BIGHT  TO  MILLSITB.  §  521 

area  to  a  single  millsite.  The  department  will  deal 
with  each  case  according  to  its  reasonable  necessities, 
only  insisting  that  if  more  than  one  millsite  is  ap- 
plied for  in  connection  with  a  group  of  lode  claims,  a 
sufficient  and  satisfactory  reason  therefor  must  be 
shown.* 

It  has  been  held  that  a  lode  proprietor  may  select 
more  than  one  tract  if  the  aggregate  does  not  exceed 
five  acres,*  provided,  of  course,  that  each  tract  is 
used  for  mining  and  milling  purposes  in  connection 
with  the  lode. 

There  is  no  provision  of  law  by  which  a  millsite 
can  be  acquired  as  additional  to,  or  in  connection 
with,  an  existing  millsite.^ 

§  521.    Right   to   millsite  —  How   initiated.  —  The 

statute  is  silent  as  to  the  manner  of  locating  millsites, 
but  it  is  not  unreasonable  to  suppose  that  a  location 
thereof  must  be  made  substantially  as  that  of  a  min- 
ing claim."  This  is  the  universal  practice  through- 
out the  mining  regions,  and  this  practice  is  recog- 
nized by  the  land  department^  and  the  courts.' 

Some  of  the  states  have  enacted  laws  prescribing 
the  manner  of  locating  millsites.  California,'  Mon- 
tana,^" Nevada, ^^  and  Utah"  have  passed  laws  pro- 

»  Hard  Cash  and  Other  Millsite  Claims,  34  L.  D.  325,  327, 

*  In  re  J.  B.  Haggin,  2  L.  D.  755. 

6  Hecla  Consolidated  M.  Co.,  12  L.  D.  75. 

6  Rico  Townsite,  1  L.  D.  556. 

7  Hargrove  v.  Robertson,  15  L.  D.  499;  In  re  George,  2  Copp's  L,  O. 
114. 

8  Hartman  v.  Smith,  7  Mont.  19,  14  Pac.  648. 
»  Civ.  Code,  §§  142€j,  1426k. 

10  Rev.  Pol.  Code,  1895,  §§  3610,  3612;  Laws  1907,  p.  18;  Rev.  Code 
1907, §  2285. 

11  Comp.  Laws  1900,  §§  222-225;   Rev.  Laws  1912,  §§  2436,  2439. 

12  Laws  1899,  p.  26,  §§  2,  3,  4,  10;  Comp.  Laws  1907,  §  1497. 


§  521  MILLSITES.  1176 

viding  for  the  posting  and  recording  of  notices;  Cali- 
fornia, Nevada  and  Utah  also  requiring  the  bound- 
aries to  be  marked,  the  first  two  states  with  the  same 
formality  as  in  the  case  of  placer  claims,  and  the  lat- 
ter so  that  the  boundaries  thereof  can  be  readily 
traced. 

The  mere  location  of  a  millsite  does  not  of  itself 
segregate  the  land  from  the  body  of  the  public  do- 
main. A  right  to  be  recognized  must  be  based  upon 
possession  and  use." 

Where  the  land  is  not  in  actual  use,  the  claimant 
must  show  such  an  occupation,  by  improvements  or 
otherwise,  as  evidences  an  intended  use  of  the  tract 
in  good  faith  for  mining  and  milling  purposes." 

Mere  intention  or  purpose  on  a  certain  contingency 
of  performing  acts  of  use  or  occupation  thereon  will 
not  satisfy  the  law." 

It  is  unnecessary  to  remark  that  the  tract  sought  to 
be  obtained  for  millsite  purposes  must  not  only  be 
nonmineral,"  but  it  must  also  be  upon  the  unoccupied, 
unreserved,  and  unappropriated  domain.  As  lands 
not  mineral  in  character  may  be  selected  under  vari- 
ous laws,  the  right  to  appropriate  them  for  millsite 
purposes  cannot  be  exercised  if  any  lawful  possession 
is  held  by  others.  Therefore,  millsites  may  not  be 
selected  on  lands  within  the  limits  of  railroad  grants 
after  the  line  of  the  road  has  been  definitely  fixed," 

13  Rico  Townsite,  1  L.  D.  556. 

1*  Two  Sisters  Lode  and  Millsite,  7  L,  D.  557;  In  re  Lenning,  5  L. 
D.  190. 

15  Ontario  S.  M.  Co.,  13  Copp's  L.  O.  159. 

16  Rico  Townsite,  1  L.  D.  556;  Alta  Millsite,  8  L.  D.  195;  Patterson 
Quartz  Mine,  4  Copp's  L.  0.  3;  Copp's  Min.  Dec.  129;  Cleary  v.  Skif- 
fich,  28  Colo.  362,  89  Am.  St,  Rep.  207,  65  Pac.  60,  21  Morr.  Min.  Rep. 
284. 

17  Mongrain  v.  N.  P.  R.  R.,  18  L.  D.  105,  Copp's  Min.  Dec.  147. 


1177  LOCATION   OF   MILLSITE.  §  522 

nor  within  the  limits  of  any  valid,  subsisting  agricul- 
tural or  other  holding.  As  between  millsite  and  ag- 
ricultural claimants,  the  rights  of  the  parties  are  de- 
termined by  priority  of  possession." 

In  Alaska  the  boundary  line  of  a  millsite  cannot 
approach  within  sixty  feet  of  tide  water,  i.  e.,  the  line 
of  ordinarj^  high  tide.^*  When  patent  for  a  millsite 
is  applied  for,  the  character  of  the  land  is  to  be  de- 
termined as  of  the  date  of  the  application,  not  the 
date  of  the  location.  If  shown  to  be  mineral  at  the 
time  patent  is  applied  for,  no  patent  can  issue.^° 

§  522.  Location  of  millsite  with  reference  to  lode. 
The  statute  provides  that  a  millsite  should  not  be 
contiguous  to  the  lode.  Whether  this  should  be  con- 
strued to  interdict  a  location  of  a  millsite  adjoining 
a  boundarj^  of  a  lode  claim  has  been  the  subject  of  dis- 
cussion by  the  department  with  varying  results. 

It  has  been  held  that  a  millsite  must  be  nonadjacent 
to  the  lode  claim.  In  other  words,  there  must  be  ap- 
preciable space  intervening  between  the  boundaries 
of  a  lode  claim  and  a  millsite."  This  rule,  however, 
no  longer  obtains.  The  later  decisions  sanction  the 
location  of  a  millsite  adjacent  to  a  side-line  of  a  lode 
claim,"  also  to  an  end-line,  although  in  the  latter  case 
a  higher  degree  of  proof  would  be  required  to  estab- 
lish the  nonmineral  character  of  the  land  than  would 
otherwise  be  required,"  owing  to  the  presumption,  at 

18  Sierra  Grande  M.  Co.  v.  Crawford,  11  L.  D.  338;  Adams  v.  Sim- 
mons, 16  L.  D.  181;   In  re  Moore,  11  Copp's  L.  O.  326. 

19  Act  of  Maj  14,  1898,  sec.  10;  30  Stats,  at  Large,  409,  413;  Comp. 
Stats.  1901,  p.  1469;   1  Fed.  Stats.  Ann.  50, 

20  Eeed  v.  Bowron,  32  L.  D.  383. 

21  Alaska  Copper  Co.,  32  L.  D.  128 ;  Brick  Pomeroy  Millsite,  34  L.  D. 
320;  Open  Door  Lode  &  Millsite   (unreported). 

22  Yankee  Millsite,  37  L.  D.  674. 
2«  In  re  Anna  Dillon,  40  L.  D.  84. 


§  523  MILLSITES.  1178 

least  for  executive  purposes,  that  the  lode  traverses 
the  claim  from  end  to  end.^*  Evidence  to  overcome 
this  presumption  would  therefore  be  necessary. 

As  the  character  of  the  land  is  always  a  question 
of  fact,  if  it  should  be  determined  that  the  tract  con- 
tiguous to  the  end-lines  is  in  fact  nonmineral,  there 
is  no  objection  to  appropriating  it  for  mil] site  pur- 
poses.^^  This  was  originally  the  rule  followed  by  the 
land  department,  and  is  now  confirmed  by  the  latest 
decisions  of  that  tribunal  as  above  noted,  the  inter- 
mediate decisions  to  the  contrary  having  been  over- 
ruled. 

§  523.  Nature  of  use  required  in  case  of  location 
by  lode  proprietor. — The  statute  does  not  mention 
any  particular  mining  purpose  for  which  a  millsite, 
selected  by  a  lode  proprietor,  shall  be  used.  If  used 
in  good  faith  for  any  mining  purpose  at  all  in  con- 
nection with  a  quartz  lode,  such  use  would  be  within 
the  meaning  of  the  statute.^' 

A  millsite  is  required  to  be  used  or  occupied  dis- 
tinctly for  mining  or  milling  purposes  in  connection 
with  the  lode  claim  with  which  it  is  associated.  The 
requirement  of  the  statute  plainly  contemplates  a 
function  or  utility  intimately  associated  with  the  re- 
moval, handling  or  treatment  of  the  ore  from  the  vein 
or  lode.  Some  step  in  or  directly  connected  with  the 
process  of  mining  or  some  feature  of  milling  must  be 
performed  upon,  or  some  recognized  agency  of  oper- 
ative mining  or  milling  must  occupy,  the  millsite  at 

24  Ante,  §  366. 

28  National  Mining  and  Exploring  Co.,  7  Copp's  L.  O.  179;  In  re 
Long,  9  Copp's  L.  0.  188. 

26  Hartman  v.  Smith,  7  Mont.  19,  14  Pac.  648,  650;  Silver  Peak  Mines 
V.  Valcalda,  79  Fed.  886;  S.  C,  on  appeal,  86  Fed.  90,  93. 


1179  NATURE  OF  USE.  §  523 

the  time  the  patent  therefor  is  applied  for  to  come 
within  the  pui*\"iew  of  the  statute.-^ 

The  erection  on  the  tract  of  a  cabin,  using  the  same 
for  storage  of  tools  and  supplies,  and  ores  in  small 
quantities,  has  been  held  to  be  within  the  intent  of 
the  law.^^  But  this  ruling  has  not  been  extended  so 
as  to  include  the  construction  and  maintenance  of  a 
boarding-house,  st©re^-sawmill  or  wharf.-® 

It  has  been  said  that  using  land  for  deposit  of  tail- 
ings,^" or  storing  ores,  or  for  shops  or  houses  for  work- 
men ;^^  for  collecting  water  to  supply  motive  power 
for  a  quartz-mill,^^  or  for  pumping  works,^^  or  for  ob- 
taining water  for  use  in  developing  the  mine,^*  might 
be  considered  proper  uses  in  connection  with  a  located 
lode,  provided  that  the  millsite  was  used  for  such 
purposes  at  the  time  patent  was  applied  for,  mere 
availability  for  such  use  or  intention  to  use  in  the 
future  being  insufficient.^^  The  storage  of  ore  on  four 
separate  millsites  claimed  in  connection  with  as  many 
lode  claims  would  not  authorize  the  entry  of  four  mill- 
sites  unless  it  were  shown  that  all  the  ore  could  not 
be  stored  on  one  of  them.^* 

Land  cannot  be  entered  as  a  millsite  simply  be- 
cause it  has  timber  growing  thereon,  which  is  valuable 

27  Alaska  Copper  Co.,  32  L.  D.  128,  131;  Hard  Cash  Millsite,  34  L. 
D.  325. 

28  Id.     See,  also,  Eclipse  Millsite,  22  L.  D.  496. 

29  Alaska  Copper  Co.,  32  L.  D.  128. 

30  Ritter  V.  Lynch,  123  Fed.  930,  933. 

81  Satisfaction  Extension  Millsite,  14  L.  D.  173;  In  re  Lenning,  5  L. 
D.  190. 

82  Id.     But  see,  contra,  Peru  Lode  and  Millsite,  10  L.  D.  196. 
88  Sierra  Grande  M.  Co.  v.  Crawford,  11  L.  D.  338. 

84  Gold  Springs  and  Denver  City  Millsite,  13  L.  D.  175.  See  Silver 
Star  Millsite,  25  L.  D.  165;  Valcalda  v.  Silver  Peak  Mines,  86  Fed. 
90,  93. 

35  Hard  Cash  Millsite,  34  L.  D.  325. 

86  Hard  Cash  Millsite,  34  L.  D.  325. 


§  524  MILLSITES.  1180 

for  use  on  a  located  lode  claim,"  althongli  the  millsite 
locator  may  cut  the  timber  growing  on  the  millsite 
for  the  purpose  of  constructing  his  mill  thereon.^^ 

The  department  has  permitted  the  entry  of  ground 
for  dumpage  purposes  in  tracts  of  greater  area  than 
five  acres,^^  on  the  theory  that  it  was  necessary  for  use 
in  connection  with  mining,  the  land  being  more  valu- 
able for  that  purpose  than  any  other;  but  this  seems 
to  us  an  unwarranted  interpretation  of  the  law. 

If  ground  on  which  tailings  are  deposited  may  be  en- 
tered as  a  millsite,  dumpage  grounds  may  also  be  en- 
tered for  like  reasons.  It  is  quite  clear  that  unless 
they  may  be  entered  under  the  millsite  laws  for  this 
purpose,  they  cannot  be  entered  at  all." 

The  fact  that  the  lode  claim  in  connection  with 
which  the  millsite  is  used  is  patented  is  immateriaL 
A  millsite  may  be  appurtenant  to  a  patented  as  well 
as  an  unpatented  claim,  and  patent  for  the  millsite 
may  subsequently  be  applied  for  separately." 

§  524.  Millsites  used  for  quartz-mill  or  reduction 
works  disconnected  with  lode  ownership. — The  right 
to  patent  a  millsite  under  the  last  clause  of  section 
twenty-three  hundred  and  thirty-seven  of  the  Revised 
Statutes  depends  upon  the  existence  on  the  land  of  a 
quartz-mill  or  reduction  works." 

S7  Two  Sisters  Lode  and  Millsite,  7  L.  D.  557. 

88  In  re  Page,  1  L.  D.  614. 

89  4  Copp's  L.  0.  102. 

40  See  In  re  Burton,  29  L.  D.  235. 

41  Eclipse  Millsite,  22  L.  D.  496. 

42  In  re  Lenning,  5  L.  D.  190;  In  re  Cyprus  Millsite,  6  L.  D.  706; 
Two  Sisters  Lode  and  Millsite,  7  L.  D.  557;  Le  Neve  Millsite,  9  L.  D. 
460;  Brodie  Gold  Seduction  Co.,  29  L.  D.  143;  Cleary  v.  Skiffich,  2» 
Colo.  362,  89  Am.  St.  Rep.  207,  65  Pac.  59,  61,  21  Morr.  Min.  Eep.  284. 


1181  CONFLICTING  LOCATIONS.  §  525 

While  the  nature  of  the  use  required  in  case  of  the 
appropriation  of  a  millsite  as  an  adjunct  to  a  located 
lode  is  not  specified,  and  the  law  is  satisfied  so  long 
as  the  purposes  are  reasonably  associated  with  the 
lode  to  which  it  is  appurtenant,  in  the  case  of  sites 
selected  under  the  last  clause  of  section  twenty-three 
hundred  and  thirty-seven,  the  character  of  the  use  is 
distinctly  specified.  The  right  to  a  patent  for  a  mill- 
site  under  this  clause  depends  upon  the  presence  on 
the  land  sought  to  he  patented  of  a  quartz-mill  or  re- 
duction works. ■'^ 

Land  not  improved  or  occupied  for  mining  or  mill- 
ing i^urposes  may  not  be  appropriated  as  a  millsite 
for  the  purjDOse  of  securing  the  use  of  water  thereon,"* 

Water  rights  upon  the  public  domain  may  not  be 
acquired  under  the  millsite  laws. 

Reservoirs,  dams,  and  plants  for  generating  power 
do  not  fall  within  the  designation  of  quartz-mills  and 
reduction  works." 

§  525.  Location  of  junior  lode  claims  conflicting 
"with  senior  millsites. — We  have  heretofore  observed 
that  junior  lode  locators  enjoy  the  privilege  of  placing 
the  lines  of  their  locations  upon  or  across  lands  which 
have  previously  been  appropriated  by  others  whether 
mineral  or  nonmineral.*^ 

The  enunciation  of  this  principle,  however,  has  been 
accompanied  by  another, — that  is,  that  the  junior  lo- 
cator cannot  by  this  method  of  placing  his  boundaries 
infringe  upon  or  impair  the  rights  acquired  by  the 

«  Brodie  Gold  Reduction  Co.,  29  L,  D.  143. 

4*  In  re  Cyprus  Millsite,  6  L.  D.  706;  Mint  Lode  and  Millsite,  12 
I..  D.  624. 

45  Le  Neve  Millsite,  9  L.  D.  460;  In  re  Lenning,  5  L.  D.  190;  Two 
Sisters  Lode  and  Millsite,  7  L,  D.  557. 

*«  Ante,  §§  363,  363a, 


§  525  MILLSITES.  1182 

prior    appropriator.     This    last    principle    is    of    un- 
doubted application  to  patented  millsites,  as  the  issu- 
ance of  a  patent  conclusively  presumes  that  the  land 
covered  by  it  is  nonmineral.''^     But  suppose  it  is  dis- 
covered at  any  time  after  the  location  of  the  millsite 
and  prior  to  the  issuance  of  a  patent  therefor  that  the 
land  embraced  within  it  contains  the  apex  of  a  dis- 
covered vein, — may   a  junior  lode  locator  place  his 
lines  within  the  millsite  boundary  so  as  to  deprive 
the  millsite  owner  of  that  part  of  the  tract  embraced 
within  the  junior  lode  location?     Under  the  placer 
laws  a  lode  discovered  within  the  limits  of  the  prior 
placer  claim  might,  by  a  peaceable  entry  in  good  faith 
on  the  surface  of  the  placer,  be  located  by  a  junior 
lode  claimant,  with  surface  ground  of  the  width  of 
fifty  feet,"'  and  to  this  extent  the  rights  of  the  prior 
placer  claimant  must  \deld.     But   there   is   no   such 
provision  with  reference  to  millsites  or  other  class  of 
nonmineral  land.     It  is  quite  well  settled,  we  think, 
that  if  at  any  time  prior  to  the  issuance  of  the  patent 
for  a  millsite,  the  land  is  shown  to  be  mineral  in  char- 
acter, no  patent  therefor  can  issue,  and  the  jurisdic- 
tion of  the  land  department  continues  for  the  purpose 
of  investigating  the  character  of  the  land  until  a  pat- 
ent is  issued."^     Under  this  state  of  facts,  the  question 
arises,  as  between  a  prior  millsite  claimant  and  a  con- 
flicting junior  lode  locator  who  attempts  to  embrace 
within  a  lode  location  the  apex  of  a  previously  dis- 
covered vein, — would  the  inquiry,  as  to  the  character 
of  the  land  be  addressed  to  its  known  quality  at  the 
date  of  the  millsite  location,  and  thus  preclude  the 
junior  lode  locator  from  acquiring  any  rights  against 

*7  Post,  §  779. 
;        «  Ante,  §  415. 

*»  Eeed  v.  Bowron,  32  L.  D.  383. 


1183  CONFLICTING  LOCATIONS.  §  525 

the  millsite  claimant,  or  would  the  discovery  of  the 
vein  within  the  millsite  at  any  time  prior  to  its  passing 
to  patent  render  the  vein  subject  to  location  by  one 
entering  peaceably  and  in  good  faith  for  that  purpose? 

The  supreme  court  of  Colorado  is  of  the  opinion  that 
the  inquiry  as  to  the  character  of  the  land  must  be 
addressed  to  its  known  condition  at  the  time  the  mill- 
site  locator's  rights  attached, — that  is,  the  date  upon 
which  he  took  the  first  step  in  the  series  which  culmi- 
nated in  the  perfection  of  the  location.  Unless  at  that 
date  the  millsite  area  contained  deposits  which  were 
then  known  to  be  valuable,  and  which  could  be  worked 
at  a  profit,  the  junior  lode  claimant  could  not  acquire 
any  rights  as  against  the  millsite  claimant.^" 

There  is  much  to  be  said  in  favor  of  this  rule,  but  it 
seems  to  us  that  it  is  not  in  harmony  with  the  rule 
applied  in  cases  of  railroad  grants,"  homestead  and 
pre-emption  filings,"  as  well  as  townsite  and  placer 
claims.  If  lands  within  a  millsite  location  could  not 
be  patented  when  they  are  discovered  to  be  mineral, 
why  should  the  millsite  claimant  be  permitted  to  hold 
them  under  a  law  which  interdicts  the  acquisition  by 
millsite  title  of  mineral  lands?  There  is  no  presump- 
tion arising  from  a  mere  location  that  lands  embraced 
within  it  are  of  a  given  character.  If  the  return  of 
the  surveyor-general  shows  the  land  to  be  nonmineral, 
the  presumption  that  it  is  of  this  character  is  only 
prima  facie,  and  it  is  subject  to  contestation." 

Perhaps  it  would  be  the  safer  rule,  and  more  in  har- 
mony with  equitable  considerations,  to  hold  that  when 

80  Cleary  v.  Skiffich,  28  Colo.  362,  89  Am.  St.  Kep.  207,  65  Pac.  59,  61, 
21   Morr.  Min.  Rep.  284. 
Bi  Ante,  §§  154,  156. 

62  Ante,  §§  205,  206, 

63  Ante,  §  106. 


§  525  MILLSITES.  1184 

any  claimant  initiated  an  inchoate  right  to  a  tract  of 
the  public  nonmineral  land  no  discovery  of  mineral 
subsequent  to  the  taking  of  the  first  step  in  the  series 
of  acts  which  might  ultimately  culminate  in  a  final 
entry  or  patent  should  defeat  the  right  of  the  non- 
mineral  appropriator.  But  clearly  this  is  not  the  rule 
followed  by  the  executive  department,"  as  we  have 
heretofore  noted. 

6*  Eeed  v.  Bowron,  32  L.  D.  383. 


CHAPTER  VIII. 

EASEMENTS. 


i  529.     Scope  of  the  chapter. 
S  530.     Rights  of  way  for  ditches 
and  canals — Highways. 


§  531.     Location    subject    only   to 
pre-existing   easements. 


§  529.  Scope  of  the  chapter. — It  is  not  our  present 
purpose  to  deal  with  that  class  of  easements  and  privi- 
leges which  are  created  by  deed  or  contract  between 
individuals,  nor  with  those  which  are  necessarily  ap- 
purtenant to  all  land  acquired  and  held  in  private 
ownership.  The  scope  of  this  chapter  is  limited  to  a 
consideration  of  those  burdens  which  the  government 
permits  to  be  imposed  upon  its  public  lands,  and  sub- 
ject to  which  it  subsequently  conveys  its  title. 

§  530.  Rights  of  way  for  ditches  and  canals — High- 
ways.— During  the  early  period  of  mining  in  the  west, 
a  system  was  established  by  common  consent,  enabling 
the  miner,  in  connection  with  his  located  mining 
claim,  to  exercise  certain  privileges  with  respect  to  the 
means  of  working  it.  Water  was  essential;  therefore, 
the  right  to  appropriate  it,  divert  it  from  its  natural 
channel,  and  conduct  it  over  the  public  lands  by  means 
of  flumes  and  ditches  to  the  place  of  intended  use,  be- 
came fully  recognized  and  established. 

The  government  was  not  consulted  in  this  matter, 
but  it  passively  recognized  these  rights,  as  it  did  the 
larger  privilege  of  extracting  gold  from  the  public 
mineral  lands,^  and  by  section  nine  of  the  act  of  July 
26,  1866,  gave  legislative  sanction  to  the  exercise  of 
these  asserted  rights.     The  section  is  as  follows: — 

1  Ante,  §  45. 

Lindley  on  M.— 75  (1185) 


§  530  EASEMENTS.  1186 

That  whenever,  by  priority  of  possession,  rights  to 
the  use  of  water  for  mining,  agricultural,  or  manu- 
facturing, or  other  purposes,  have  vested  and  ac- 
crued, and  the  same  are  recognized  and  acknowl- 
edged by  the  local  customs,  laws,  and  the  decisions 
of  courts,  the  possessors  and  owners  of  such  vested 
rights  shall  be  maintained  and  protected  in  the 
same,  and  the  right  of  way  for  the  construction  of 
ditches  and  canals  for  the  purposes  aforesaid  is 
hereby  acknowledged  and  confirmed;  provided, 
hoiuever,  that  whenever,  after  the  passage  of  this 
act,  any  person  or  persons  shall,  in  the  construction 
of  any  ditch  or  canal,  injure  or  damage  the  posses- 
sion of  any  settler  on  the  public  domain,  the  party 
committing  such  injury  or  damage  shall  be  liable  to 
the  party  injured  for  such  injury  or  damage.^ 

This  section  was  substantially  re-enacted  in  the  Re-^ 
vised  Statutes.     There  are  some  verbal  changes,  but 
none  affecting  its  substance  or  meaning.^ 

It  has  been  contended  that  this  act  only  undertook 
to  confirm  and  protect  rights  vested  prior  to  its  pas> 
sage,  and  that  it  did  not  necessarily  sanction  the  future 
acquisition  of  such  privileges.  The  opinion  of  the 
supreme  court  of  the  United  States  in  Broder  v.  Na- 
toma  Water  Company*  would  appear  to  support  this 
contention,  but  as  was  said  by  the  supreme  court  of 
California,®  in  constming.  this  opinion,  the  question 
was  not  before  the  court.  The  ditch  there  involved 
was  completed  in  1853,  and  therefore  was  clearly 
within  the  confirmatory  clauses  of  the  act. 

2  For  acts  of  congress  providing  for  rights  of  way  for  canals,  ditches, 
oil  pipe-lines,  and  reservoirs,  and  regulations  thereunder,  see  36  L.  D. 
567. 

3  Jennison  v.  Kirk,  98  U.  S.  453,  456,  25  L.  ed.  240,  4  Morr.  Min. 
Rep.  504. 

*  101  U.  S.  274,  276,  25  L.  ed.  790,  5  Morr.  Min.  Rep.  33, 
6  Jacob  V.  Lorenz,  98  Cal.  332,  336,  33  Pac.  119,  121. 


1187  RIGHTS  OF  WAT.  §  530 

The  supreme  court  of  Nevada  in  construing  the  sec- 
tion in  question,  after  referring  to  its  ^^turhid  style,^* 
and  "grammatical  solecisms,"  says: — 

In  its  adoption  there  appear  to  have  heen  three 
distinct  objects  in  view: — 

First — The  confirmation  of  all  existing  water 
rights ; 

Second — To  grant  the  right  of  way  over  the  public 
land  to  persons  desiring  to  construct  flumes  or  canals 
for  mining  or  manufacturing  purposes; 

Third — To  authorize  the  recovery  of  damages  by 
settlers  on  such  land,  against  persons  constructing 
such  ditches  or  canals,  for  injuries  occasioned 
thereby.® 

The  court  adds: — 

That  this  section,  granting  rights  of  way  over  the 
public  land  to  all  who  may  desire  to  construct 
ditches  or  canals  for  mining  or  agricultural  pur- 
poses, is  about  as  clear  and  certain  as  the  objects 
and  purposes  of  the  acts  of  congress  usually  are. 

The  supreme  court  of  California  coincides  with  the 
views  of  the  supreme  court  of  Nevada  as  to  the  scope 
and  intent  of  the  act  under  consideration.^ 

We  have  no  intention  of  entering  into  a  discussion 
of  water  rights  generally,  the  manner  of  appropriating 
them,  the  purposes  for  which  they  may  be  acquired,  or 
relative  rights  between  such  appropriators  and  ripa- 
rian proprietors.  As  water  may  be  the  subject  of 
appropriation  under  certain  conditions  for  many  use- 
ful purposes,  other  than  as  an  adjunct  to  mining 
operations,  and  as  there  is  nothing  in  the  manner  of 

6  Hobart  v.  Ford,  6  Nev.  77,  15  Morr.  Min.  Eep.  236.  See,  also, 
Barnes  v.  Sabron,  10  Nev.  217,  4  Morr.  Min.  Rep.  673, 

7  Jacob  V.  Lorenz,  98  Cal.  332,  336,  33  Pac.  119,  121;  Lorenz  v. 
Waldron,  96  Cal.  243,  31  Pac.  54,  56 j  Jacob  v.  Day,  111  Cal.  571,  44 
Pac,  243,  245. 


§  530  EASEMENTS.  1188 

perfecting  sucli  appropriation  peculiar  to  this  par- 
ticular class  of  ventures,  we  shall  not  undertake  to 
deal  with  it  to  any  serious  extent  in  this  treatise.* 
The  law  of  waters  is  too  broad  in  its  scope  to  permit 
its  treatment  in  a  collateral  way.  All  that  we  expect 
to  demonstrate  in  reference  to  it  is,  that  mining  loca- 
tions made  upon  the  public  lands  must  be  made  subject 
to  any  easements  theretofore  lawfully  acquired  and 
subsisting,  and  held  for  the  purposes  of  conducting 
water  over  them.  That  this  is  the  settled  law  there 
can  be  no  doubt.* 

This  is  but  the  reannouncement  of  the  early  doctrine, 
that  the  miner  who  selects  a  piece  of  ground  to  work 
must  take  it  as  he  finds  it,  subject  to  prior  rights  which 
have  an  equal  equity,  on  account  of  an  equal  recogni- 
tion from  the  sovereign  power." 

As  to  highways,  section  twenty-four  hundred  and 
seventy-seven  of  the  Revised  Statutes  grants  the  right 
of  way  for  the  construction  of  highways  over  public 
lands  not  reserved  for  public  uses.  A  mining  location 
made  subsequent  to  the  laying  out  of  a  public  road 
crossing  it  would  be  subject  to  the  public  easement.^^ 
This  is  a  general  principle  aiDplicable  to  all  lands  ac- 
quired from  the  government,^-  and  is  but  the  applica- 

8  Post,  §  838. 

»  Jacob  V.  Day,  111  Cal.  571,  44  Pac.  243,  244;  Eockwell  v.  Graham, 
9  Colo.  36,  10  Pac.  284,  15  Morr.  Min.  Rep.  299;  Welch  v.  Garrett,  5 
Idaho,  639,  51  Pac.  405;  Snyder  v.  Colorado  Gold  Dredging  Co.,  181 
Fed.  63,  70,  104  C.  C.  A.  136. 

10  Irwin  v.  Phillips,  5  Cal.  140,  147,  63  Am.  Dec.  113,  15  Morr.  Min. 
Rep.  178;  Logan  v.  Driscoll,  19  Cal.  623,  626,  81  Am.  Dec.  90,  6  Morr. 
Min.  Rep.  172;  Stone  v.  Bumpus,  46  Cal.  218,  221,  4  Morr.  Min.  Rep. 
278;   Maffet  v.  Quine,  93  Fed.  347,  348. 

11  Murray  v.  City  of  Butte,  7  Mont.  61,  14  Pac.  656,  657;  Murray 
V.  City  of  Butte,  31  Mont.  177,  77  Pac.  527,  528;  City  of  Butte  v. 
Mikosowitz,  39  Mont.  350,  102  Pac.  593,  595. 

12  McRose  V.  Bottyer,  81  Cal.  122,  22  Pac.  393,  394;  Bequette  v. 
Patterson,  104  Cal.  284,  37  Pac.  917;  Schwerdtle  v.  Placer  County,  108 


1189  LOCATIONS    SUBJECT    TO    EXISTING    E.VSEMENTS.  §  531 

tion  of  the  doctrine  in  ordinan^  conveyances  where 
there  are  physical  visible  easements  that  both  parties 
act  upon  the  presumption  that  the  conveyance  is  made 
charged  with  the  easement." 

Mining  claims  frequently  overlap  or  conflict  with 
established  rights  of  jway,  such  as  public  roads  and 
railroad  rights  of  way.  In  such  cases  the  areas  in 
conflict  are  not  necessarily  excluded  in  patent  applica- 
tions. The  patent  might  issue  subject  to  the  easement, 
the  entryman,  however,  paying  for  the  entire  tract.^* 

The  obligation  on  the  mining  claimant  to  support 
the  surface  would  of  course  be  mandatory.^^ 

Subject  to  this  duty  the  mining  claimant  might  ex- 
tract mineral  from  underneath  the  right  of  way.^° 

§  531.  Location  subject  only  to  pre-existing  ease- 
ments.— The  right  of  the  United  States  to  grant  ease- 
ments and  other  limited  rights  on  any  portion  of  its 
public  domain  cannot  be  gainsaid,  and  subsequent  pur- 
chasers must  take  it  burdened  with  such  easements  or 
other  rights." 

But  when  it  has  once  disposed  of  its  entire  estate 
in  the  lands  to  one  party,  it  can  afterward  no  more 

Cal.  591,  41  Pac.  448,  449;  Smith  v.  Hawkins,  110  Cal.  125,  42  Pac. 
453,  454. 

13  Sisk  V.  Caswell,  14  Cal.  App.  377,  112  Pac.  185,  190. 

1*  Schirm-Carey  and  Other  Placers,  37  L.  D.  371;  Moran  v.  Chicago 
B.  &  Q.  R.,  83  Neb.  680,  120  N.  W.  192,  194.  See,  also,  Rio  Grande 
Western  Ry.  Co.  v.  Stringham,  38  Utah,  113,  110  Pac.  868,  870;  Grand 
Canyon  Ry.  Co.  v.  Cameron,  35  L.  D.  495. 

15  Southwest  Missouri  Ry.  Co.  v.  Big  Three  M.  Co.,  138  Mo.  App. 
129,  119  S.  W.  982,  983. 

16  See  Grand  Canyon  Ry.  Co.  v.  Cameron,  35  L.  D.  495;  Dilts  v. 
Plumville  R.  Co.,  222  Pa.  516,  71  Atl.  1072,  1076. 

17  Amador-Medean  G.  M.  Co.  v.  S.  Spring  Hill  M.  Co.,  13  Saw.  523, 
36  Fed.  668,  670;  Welch  v.  Garret,  5  Idaho,  639,  51  Pac.  405;  Murray 
V.  City  of  Butte,  31  Mont.  177,  77  Pac.  527. 


§  531  EASEMENTS.  1190 

burden  it  with  other  rights  than  any  other  proprie- 
tor of  lands/® 

The  same  doctrine  applies  to  perfected  mining  loca- 
tions. After  such  location  has  once  been  completed, 
the  estate  of  its  owner  cannot  be  subjected  to  burdens, 
except  for  some  public  use;'®  or  if  sanctioned  by  the 
state  constitution,  perhaps,  for  a  private  use,  upon 
condemnation  proceedings. ^° 

This  phase  of  the  subject  has  been  discussed  by  us 
in  a  preceding  portion  of  this  work,^'  and  it  is  un- 
necessary to  here  repeat  what  was  there  said.^'^ 

As  to  other  privileges  which  may  be  said  to  be  inci- 
dent to  the  ownership  of  mines  and  mining  claims,  we 
shall  consider  them  when  discussing  the  nature  of  the 
title  acquired  and  rights  conferred  by  location.  This 
will  include  the  cross-lode  question  and  the  privileges 
granted,  if  any,  to  a  junior  cross-lode  locator." 

18  Woodruff  V.  North  Bloomfield  Gravel  M.  Co.,  9  Saw.  441,  18  Fed. 
753,  772.  See,  also,  Dower  v.  Richards,  73  Cal.  477,  15  Pac.  105,  107; 
Amador  Queen  M.  Co.  v.  Dewitt,  73  Cal.  482,  15  Pac.  74,  75. 

19  St.  Louis  M.  &  M.  Co.  v.  Montana  M.  Co.,  113  Fed.  900,  902,  51 
C.  C.  A.  530;  affirmed  on  appeal,  194  U,  S.  235,  24  Sup.  Ct,  Rep.  654, 
48  L.  ed.  953;  Snyder  v.  Colorado  Gold  Dredging  Co.,  181  Fed.  63,  104 
C.  C.  A.  136. 

20  People  V.  District  Court,  11  Colo.  147,  17  Pac.  298,  302;  Robertson 
V.  Smith,  1  Mont.  410,  7  Morr.  Min.  Rep.  196;  Noteware  v.  Sterns,  1 
Mont.  311,  4  Morr.  Min.  Rep.  650. 

21  A7ite,  §§  252-264. 

2ia  It  has  been  held  by  one  of  the  district  courts  in  Alaska  that  under 
local  customs  prevailing  in  that  territory,  one  may  enter  upon  an  un- 
patented mining  claim  owned  by  another  for  the  purpose  of  appropriating 
water  flowing  through  it,  and  acquire  a  right  of  way,  without  condemna* 
tion,  for  the  purpose  of  diverting  it. 

22  Post,  §§557-561. 


TITLE  VI. 


THE    TITLE    ACQUIRED    AND    RIGHTS    CON- 
FERRED BY  LOCATION. 


Chapter 

I.  THE  CHAEACTER  OF  THE  TENURE. 

II.  THE  NATURE  AND  EXTENT  OF  PROPERTY  RIGHTS  CON- 
FERRED BY  LODE  LOCATIONS. 

III.  THE  EXTRALATERAL  RIGHT. 

IV.  THE  NATURE  AND  EXTENT  OF  PROPERTY  RIGHTS  CON- 

FERRED BY  PLACER  LOCATIONS. 

V.  PERPETUATION  OF  THE  ESTATE  BY  ANNUAL  DEVELOP- 
MENT AND  IMPROVEMENT. 

VL  FORFEITURE  OF  THE  ESTATE,  AND  ITS  PREVENTION 
BY  RESUMPTION  OF  WORK. 
(1191) 


€  H  A  P  T  E  R  I. 

THE  CHARACTER  OF  THE  TENURE. 


I  535.  Nature  of  the  estate  as 
defined  by  the  early 
decisions. 

§  536.     Origin  of  the  doctrine. 

§  537.  Actual  and  constructive 
possession  under  miners' 
rules. 

§  538.  Federal  recognition  of  the 
doctrine. 

§  539.  Nature  of  the  estate  as  de- 
fined by  the  courts  since 
the  enactment  of  gen- 
eral  mining  laws. 


§  540. 


§  541. 


§  542. 


§  543. 
§  544. 


Nature  of  the  estate  com- 
pared with  copyholds  at 
common  law. 

Nature  of  the  estate  com- 
pared with  the  dominium 
utile  of  the  civil  law. 

Nature  of  the  estate  com- 
pared with  inchoate  pre- 
emption and  homestead 
claims. 

Dower  within   the  states. 

Dower  within  the  terri- 
tories. 


§  535.  Nature  of  the  estate  as  defined  by  the  early 
decisions. — It  is  somewhat  difficult  to  comprehensively 
classify  the  nature  of  the  estate  acquired  and  held  by 
the  possessor  of  a  valid  mining  location  by  the  use  of 
any  definitive  term  recognized  by  the  common  law  or 
employed  in  the  United  States  to  designate  a  particu- 
lar tenure.^ 

In  the  early  history  of  mining  jurisprudence,  the 
estate  or  interest  acquired  by  the  miner  in  his  claim, 
held  and  worked  under  the  local  rules  and  customs, 
was  treated  as  an  interest  in  real  property.  It  was 
liable  to  sale  on  execution,-  and  was  subject  to  taxa- 
tion.^ 

1  Judge  Knowles  in  Black  v.  Elkhorn  M.  Co.,  49  Fed.  549,  550. 

2  McKeon  v.  Bisbee,  9  Cal.  137,  138,  70  Am.  Dec.  642,  2  Morr.  Min. 
Rep.  309. 

3  State  of  California  v.  Moore,  12  Cal.  56,  72,  14  Morr.  Min.  Rep.  110; 
People  V.  Shearer,  30  Cal.  645,  661;  Hale  &  Norcross  M.  Co.  v.  Storey 
County,  1  Nev.  82,  14  Morr.  Min.  Rep.  155;  People  v.  Taylor,  1  Nev.  88; 
Forbes  v.  Gracey,  94  U.  S.  762,  767,  24  L.  ed.  313,  14  Morr.  Min.  Rep. 
183;  Elder  v.  Wood,  208  U.  S.  226,  232,  28  Sup.  Ct.  Rep.  263,  52  L.  ed. 

(1193) 


§  535  THE  CHARACTER  OF  THE    TENURE.  1194 

The  supreme  court  of  California  thus  announced  its 
views : — 

From  an  early  period  of  our  state  jurisprudence 
we  have  regarded  these  claims  to  public  mineral 

lands  as  titles.     They  are  so  practically Our 

courts  have  given  them  the  recognition  of  legal  es- 
tates of  freehold;  and  so  for  all  practical  purposes, 
if  we  except  some  doctrine  of  abandonment  not 
perhaps  applicable  to  such  estates,  unquestionably 
they  are,  and  we  think  it  would  not  be  in  harmony 
with  the  general  judicial  system  to  deny  to  them  the 
incidents  of  freehold  estates  in  respect  to  this  mat- 
ter * 

And  in  a  later  ease  the  same  tribunal  stated  the  rule 
to  be: — 

That  although  the  ultimate  fee  in  our  public 
mineral  lands  is  vested  in  the  United  States,  yet,  as 
between  individuals,  all  transactions  and  all  rights, 
interests,  and  estates  in  the  mines  are  treated  as  be- 
ing an  estate  in  fee  and  as  a  distinct  vested  right 
of  property  in  the  claimant  or  claimants  thereof, 
founded  upon  their  possession  or  appropriation  of 
the  land  containing  the  mine.  They  are  treated,  as 
between  themselves  and  all  persons  but  the  United 
States,  as  the  owners  of  the  land  and  mines  therein.^ 

As  was  said  by  the  supreme  court  of  Nevada,  the 
courts  and  the  laws,  adapting  themselves  to  the  neces- 
sity of  the  case,  and  governed  by  rules  of  common 

464;  Bakersfield  &  Fresno  Oil  Co.  v.  Kern  County,  144  Cal.  148,  77  Pae. 
892,  893;  Cobban  v.  Meagher,  42  Mont.  399,  113  Pac.  290,  293. 

4  Merritt  v.  Judd,  14  Cal.  60,  64,  6  Morr.  Min.  Bep.  62,  cited  and 
approved  in  Roseville  Alta  Co.  v.  Iowa  Gulch,  15  Colo.  29,  22  Am.  St. 
Rep.  373,  24  Pac.  920,  921,  16  Morr.  Min.  Rep.  93;  Spencer  v.  Winsel- 
man,  42  Cal.  479,  482,  2  Morr.  Min.  Rep.  334;  Buchner  v.  Malloy,  155 
Cal.  253,  100  Pac.  687,  688. 

5  Hughes  V.  Devlin,  23  Cal.  502,  507,  12  Morr.  Min.  Rep.  241;  Watts 
v.  White,  13  Cal.  321,  324,  13  Morr.  Min.  Rep.  11. 


1195  ORIGIN  OP  THE  DOCTRINE.  §  536 

sense,  reason,  and  necessity,  have  universally  treated 
the  possessor}'  rights  of  the  miner  as  an  estate  in  fee." 
Actions  for  possession,  similar  to  the  action  of  eject- 
ment,^ actions  to  quiet  title,'  actions  of  trespass,  bills 
for  partition,"  are  constantly  maintained.  Such  in- 
terests are  held  to  descend  to  the  heir,'°  to  be  subject 
to  sale  on  execution,'^  and  to  be  assets  in  the  hands 
of  executors  and  administrators  for  the  payment  of 
debts." 

§  536.  Origin  of  the  doctrine.— The  dignity  thus  at- 
taching to  the  miner's  title  had  its  genesis  in  the  early 
history  of  mining  in  the  west,  and  was  founded  upon 
the  law  of  possession.  It  was  the  natural  result  of  the 
recognition  by  local  legislatures  of  mining  rights  in 
the  public  domain,  and  the  exercise  of  such  rights  by 

6  Mining  claims  are,  regardless  of  statutory  provisions,  real  estate. 
Lavagnino  v.  Ublig,  26  Utah,  1,  99  Am.  St.  E^p.  808,  71  Pac.  1046,  1051, 
22  Morr.  Min.  Eep.  610;  S.  C,  in  error,  198  U.  S.  443,  25  Sup.  Ct.  Rep. 
716,  49  L.  ed.  1119;  Bradford  v.  Morrison,  10  Ariz.  214,  86  Pac.  6,  7. 

7  Davidson  v.  Calkins,  92   Fed.   230,  232. 

8  Mt.  Rosa  M.  M.  &  L.  Co.  v.  Palmer,  26  Colo.  56,  77  Am.  St.  Rep. 
245,  56  Pac.  176,  177,  50  L.  R.  A.  2S9;  Fulkerson  v.  Chisna  M.  &  I.  Co., 
122  Fed.  782,  785,  58  C.  C.  A.  582;  Ripinsky  v.  Hinchman,  181  Fed. 
786,  793,  105  C.  C.  A.  462. 

9  Dall  V.  Confidence  S.  M.  Co.,  3  Nev.  531,  93  Am.  Dec.  419,  11  Morr. 
Min.  Rep.  214;  Aspen  M.  etc.  Co.  v.  Rucker,  28  Fed.  220,  221  (disap- 
proving Strettell  v.  Ballou,  3  McCrary,  46,  9  Fed.  256,  11  Morr.  Min. 
Rep.  220). 

But  it  is  seldom  tliat  a  division  of  mines  may  be  made.  Generally, 
partition  suits  must  result  in  sale.  Post,  §  792;  Aspen  M.  &  S.  Co.  v. 
Rucker,  28  Fed.  220;  Lenfers  v.  Henke,  73  HI.  405,  24  Am.  Rep.  263. 
5  Morr.  Min.  Rep.  67.  See,  also,  Coleman  v.  Coleman,  19  Pa.  100,  57 
Am.  Dec.  641,  11  Morr.  Min.  Rep.  183. 

10  Lohman  v.   Helmer,   104  Fed.   178,   182. 

11  Phoenix  M.  &  M.  Co.  v.  Scott,  20  Wash.  48,  54  Pac.  777,  778;  Butte 
Hardware  Co.  v.  Frank,   25   Mont.  344,  65  Pac.   1,  2. 

12  Hale  &  Noreross  G.  &  S.  M.  Co.  v.  Storey  County,  1  Nev.  83,  14 
Morr.  Min.  Rep.  155. 


§  536  THE  CHARACTER  OF  THE   TENURE,  1196 

appropriation  under  the  local  rules  and  customs.  As 
no  intruder  upon  the  possession  of  a  prior  appropriator 
could  successfully  defend  an  action  involving  posses- 
sory rights  by  asserting  that  the  paramount  title  was 
in  the  general  government,  this  antecedent  possession 
was  in  itself  sufficient  evidence  of  title.  This  was 
nothing  more  than  the  application  of  a  familiar  rule 
of  the  common  law  that,  as  against  a  mere  trespasser, 
title  may  be  inferred  from  possession.  The  actual 
possessor  of  real  property  was  so  far  regarded  by  law 
as  the  owner  thereof  that  no  one  could  lawfully  dis- 
possess him  of  the  same  without  showing  some  well- 
founded  title  of  a  higher  or  better  character  than  such 
possession  itself  furnishes.^^ 

The  early  announcement  of  the  doctrine  by  the 
courts  in  the  mining  states  that  controversies  between 
occupants  of  the  public  mineral  lands  were  to  be  de- 
termined by  the  law  of  possession,  and  that  persons 
claiming  and  in  the  possession  of  mining  claims  on 
these  lands  were,  as  between  themselves  and  all  other 
persons,  except  the  United  States,  owners  of  the  same, 
having  a  vested  right  of  property  founded  on  their 
possession  and  appropriation,"  was  the  declaration  of 
no  new  canon  of  jurisprudence. 

The  enunciation  of  the  rule  that  the  naked  possessor 
of  land  was  deemed  in  law  the  owner  until  the  general 
government  or  a  person  showing  title  under  it  makes 
an  entr>^  upon  the  same,  and  that  when  this  was  done 
the  right  or  claim  of  the  possessor  must  yield  to  the 
paramount  authority  of  the  United  States  or  its 
grantee, ^^  was  but  a  restatement  of  a  well-established 
rule  of  law. 

13  3  Washburn  on  Real  Property,  3d  ed.,  p.  114;  5th  ed.,  p.  134. 
1*  Hughes  V.  Devlin,  23  Cal.  501,  505,  12  Morr.  Min,  Eep.  241. 
16  Doran  v.  C.  P.  R.  K.,  24  Cal.  245,  255. 


1197  POSSESSION  UNDER  MINERS'  RULES,  §  537 

It  is  also  a  familiar  doctrine  of  the  common  law  that 
where  one,  under  a  title  deed  describing  a  parcel  of 
land  by  metes  and  bounds,  enters  upon  the  premises, 
claiming  to  hold  the  same  under  his  deed,  he  is  con- 
structively in  possession  of  all  that  is  included  in  his 
deed,  though  he  actually  occupies  but  a  part;^°  and, 
by  the  same  rule,  any  instrument  having  a  grantor  and 
a  grantee,  and  containing  an  adequate  description  of 
the  lands  to  be  conveyed  and  apt  words  for  their  con- 
veyance, gives  color  of  title  to  the  lands  described/^ 

The  application  of  these  elementary  rules  to  the 
novel  and  peculiar  conditions  surrounding  the  early 
history  of  the  mining  industry  in  the  west,  evolved  a 
new  color  of  title  by  which  the  extent  of  a  miner's 
right  of  possession  was  determined. 

§  537.  ActuaJ  ajid  constructive  possession,  under 
miners'  rules. — It  was  early  announced  as  a  rule  of 
property  that  mining  claims  were  held  by  compliance 
with  local  rules,  and  pedis  possessio  was  not  required 
to  give  a  right  of  action.  When  the  claim  was  de- 
fined, and  a  party  entered  into  possession  of  a  part, 
that  possession  was  possession  of  the  entire  claim  as 
against  anyone  but  the  true  owner  or  prior  occupant,^* 
and  priority  of  occupation  established  a  priority  of 
right.^* 

This  doctrine  of  constructive  possession  was  even 
extended  to  instances  where  the  right  asserted  was  not 
referable  to  local  rules.     Thus  it  was  held  that  mining 

18  3  Washburn  on  Real  Property,  3d  ed.,  p.  118;  5th  ed.,  p.  138. 

17  Id.,  3d  ed.,  p.  139;   5th  ed.,  p.  167;   Brooks  v.  Bruyn,  35  111.  392. 

18  Attwood  V.  Fricot,  17  Cal.  37,  43,  76  Am.  Dec.  567,  2  Morr.  Min, 
Rep.  305;  English  v.  Johnson,  17  Cal.  107,  116,  76  Am.  Dec.  57-t,  12 
Morr.  Min.  Rep.  202;  Roberts  v.  Wilson,  1  Utah,  292,  4  Morr.  Min. 
Bep.  498. 

i»  Gibson  v.  Puchta,  33  Cal.  310,  316,  12  Morr.  Min,  Rep.  227. 


§  537  THE  CHARACTER  OF  THE   TENURE.  1198 

ground  acquired  by  an  entry  under  a  claim  for  mining 
purposes  upon  a  tract  the  bounds  of  which  were  dis- 
tinctly marked  by  physical  marks,  accompanied  with 
actual  occupancy  of  a  part  of  the  tract,  was  sufficient 
to  enable  the  possessor  to  maintain  ejectment  for  the 
entire  claim,  although  such  acts  of  appropriation  were 
not  done  in  accordance  with  any  local  mining  rule." 

In  such  case,  however,  the  extent  of  such  location 
was  not  without  limit.  The  quantity  taken  must  have 
been  reasonable,  and  whether  it  was  so  or  not  was  to 
be  determined  in  such  cases  by  the  general  usages  and 
customs  prevailing  upon  the  general  subject.  If  an 
unreasonable  quantity  was  included  within  the  bound- 
aries, the  location  was  ineffectual  for  any  purpose,  and 
possession  under  it  only  extended  to  the  ground  actu- 
ally occupied.-^ 

But,  as  a  rule,  mere  entry  and  possession  gave  no 
right  to  the  exclusive  enjoyment  of  any  given  quan- 
tity of  the  public  mineral  lands." 

Where  an  occupant  relied  upon  constructive  pos- 
session, it  devolved  upon  him  to  establish  three  essen- 
tial facts: — 

(1)  That  there  were  local  mining  customs,  rules,  and 
regulations  in  force  in  the  district  embracing  the 
claims; 

(2)  That  particular  acts  were  required  to  be  per- 
formed in  the  location  and  working  of  the  claims; 

20  Table  Mountain  T.  Co.  v.  Stranahan,  20  Cal.  198,  209,  9  Morr, 
Min.  Rep.  457;  Hess  v.  Winder,  30  Cal.  349,  355,  12  Morr.  Min.  Rep.  217. 
See  Valcalda  v.  Silver  Peak  Mines,  86  Fed.  90,  94. 

21  Table  Mountain  T.  Co,  v.  Stranahan,  20  Cal.  198,  209,  9  Morr.  Min. 
Eep.  457.  See  Mallett  v.  Uncle  Sam  M.  Co.,  1  Nev.  156,  188,  90  Am. 
Dec.  484,   1   Morr.   Min.   Rep.   17. 

22  Smith  V.  Doe,  15  Cal.  100,  105,  5  Morr.  Min.  Rep.  218;  Gillan  r. 
Hutchinson,  16  Cal.  153,  156,  2  Morr.  Min.  Rep.  317. 


1199         FEDERAL  RECOGNITION  OF  DOCTRINE.         §  538 

(3)  That  tie  had  substantially  complied  with  the  re- 
quirements." 

This  rule  was  somewhat  relaxed  in  favor  of  a  pur- 
chaser who  entered  under  a  deed  which  contained 
definite  and  certain  boundaries  which  could  be  marked 
out  and  made  known  from  the  deed  alone,"*  which  was 
nothing  more  than  a  reiteration  of  the  doctrine  of  the 
common  law  relative  to  entries  under  color  of  title, 
heretofore  mentioned.  The  miner's  title  extended  to 
such  mining  lands  as  were  reduced  to  his  actual  pos- 
session, or  to  such  as  were  constructively  in  his  pos- 
session, according  to  the  rules  above  enumerated. 

§  538.  Federal  recognition  of  the  doctrine. — While 
the  government  passively  encouraged  and  fostered  the 
system  of  development  of  the  mineral  resources  as 
practiced  in  the  mining  states  and  territories,  it  gave 
no  legislative  expression  of  its  encouragement,  or  any 
recognition  that  the  occupants  of  the  public  mineral 
lands  were  other  than  mere  trespassers,  until  February^ 
27,  1865,  when  congress  passed  an  act  providing  for  a 
district  and  circuit  court  for  the  state  of  Nevada,  the 
ninth  section  of  which  provided  as  follows: — 

That  no  possessor>^  action  between  individuals  in 
any  of  the  courts  of  the  United  States  for  the  re- 
cover^^  of  any  mining  title,  or  for  damages  to  such 
title,  shall  be  affected  by  the  fact  that  the  paramount 
title  to  the  land  on  which  such  mines  are  is  in  the 
United  States;  but  each  case  shall  be  adjudged  by 
the  law  of  possession." 

23  Pralus  V.  Jefferson  G.  &  S.  M.  Co.,  34  Cal.  558,  562,  12  Morr.  Min. 
Rep.  473. 

24  Hess  V.  Winder,  30  Cal.  349,  356,  12  Morr.  Min.  Rep.  217. 

25  13  Stats,  at  Large,  441;  Comp.  Stats.  1901,  p.  679;  5  Fed.  Stats. 
Ann.  35. 


§  539  THE  CHARACTER  OP  THE   TENURE.  1200 

This  was  re-enacted  in  the  Revised  Statutes,^'  and 
forms  a  part  of  the  general  legislation  of  congress  on 
the  subject  of  mineral  lands. 

The  supreme  court  of  the  United  States,  in  the  case 
of  Forbes  v.  Gracey,^^  approved  and  confirmed  the 
doctrine  of  the  early  decisions  as  to  the  nature  of  a 
locator's  estate. 

Those  claims  [said  that  court]  are  the  subject  of 
bargain  and  sale,  and  constitute  very  largely  the 
wealth  of  the  Pacific  Coast  states.  '  They  are  prop- 
erty in  the  fullest  sense  of  the  word,  and  their  own- 
ership, transfer,  and  use  are  governed  by  a  well- 
defined  code  or  codes  of  law,  and  are  recognized  by 
the  states  and  the  federal  government.  These 
claims  may  be  sold,  transferred,  mortgaged,  and  in- 
herited, without  infringing  the  title  of  the  United 
States.'* 

§  539.  Nature  of  the  estate  as  defined  by  the  courts 
since  the  enactment  of  general  mining  laws. — With 
reference  to  the  character  of  the  estate  held  by  a  min- 
ing locator  since  the  passage  of  the  act  of  July  26, 
1866,  the  decisions  of  the  courts,  both  state  and  federal, 
are  quite  harmonious.  They  in  no  way  antagonize  the 
theories  of  the  earlier  decisions,  but  adopt  them.  Nat- 
urally, the  definition  is  enlarged  and  perfected.  A 
mere  occupant  of  lands,  who  is  technically  a  trespasser^ 
has  rights  of  less  dignity  than  one  who  enters  with 
the  consent  of  the  paramount  proprietor  under  rules 
defining  the  terms  of  his  occupancy  and  the  extent  and 
limit  of  his  rights. 

26  §  910. 

27  94  U.  S.  762,  767,  24  L.  ed.  313,  14  Morr.  Min.  Rep.  183. 

28  See,  also,  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U. 
S.  55,  62,  18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72;  O'Connell  v.  Pinnacle 
Gold  M.  Co.,  140  Fed.  854,  855,  4  L.  R.  A.,  N.  S.,  919,  72  C.  C.  A.  645  j 
Reed  v.  Munn,  148  Fed.  737,  757,  80  C,  C.  A.  215. 


1201  SINCE  ENACTMENT   OF   GEXER.Uj   MINING  LAWS.         §  539 

Prior  to  the  issuance  of  a  patent  the  locator  cannot 
be  said  to  own  the  fee  simple  title.  The  fee  resides  in 
the  general  government,  whose  tribunals,  specially 
charged  with  the  ultimate  conveyance  of  the  title,  must 
pass  upon  the  qualifications  of  the  locator  and  his 
compliance  with  the  law.  Yet,  as  between  the  locator 
and  everyone  else  save  the  paramount  proprietor  the 
estate  acquired  by  a  perfected  mining  location  pos- 
sesses all  the  attributes  of  a  title  in  fee,  and  so  long 
as  the  requirements  of  the  law  with  reference  to  con- 
tinued development  are  satisfied,  the  character  of  the 
tenure  remains  that  of  a  fee.  As  between  the  locator 
and  the  government,  the  former  is  the  owner  of  the 
beneficial  estate,  and  the  latter  holds  the  fee  in  trust,  > 
to  be  conveyed  to  such  beneficial  owner  upon  his  ap-  i 
plication  in  that  behalf  and  in  compliance  with  the  ] 
terms  prescribed  by  the  paramount  proprietor.^' 

Until  patent  issues  the  locator's  muniments  of  title 
consist  of  the  laws  under  the  sanction  of  which  his 
rights  accrue,  the  series  of  acts  culminating  in  a  com- 
pleted valid  location,  and  those  necessary  to  be  con- 
tinuously performed  to  perpetuate  it. 

A  mining  claim  perfected  under  the  law  is  property 
in  the  highest  sense  of  that  term,  which  may  be  bought, 
sold,  and  conveyed,  and  will  pass  by  descent.  It  is 
subject  to  administration  and  sale  in  payment  of  the 
debts  of  the  deceased  owner.^°  "It  is  vendible,  in- 
heritable and  taxable, "^^  "a  legal  estate  of  freehold,"" 

29  Noyes  v.  Mantle,  127  U.  S.  348,  351,  8  Sup.  Ct.  Eep.  1132,  32  L. 
ed.  168;  Dahl  v.  Eaunheim,  132  U.  S.  260,  262,  10  Sup.  Ct.  Rep.  74, 
33  L.  ed.  325,  16  Morr,  Min.  Rep.  214;  Gillis  v.  Downey,  85  Fed.  483, 
487,  29  C.  C.  A.  286. 

30  O'Connell  v.  Pinnacle  Gold  Mines  Co.,  131  Fed.  106,  109;  S.  C,  on 
appeal,  140  Fed.  854,  4  L.  R.  A.,  N.  S.,  919,  72  C.  C.  A.  645. 

31  Elder  v.  Wood,  208  U.  S.  226,  232,  28  Sup.  Ct.  Rep.  263,  52  L,  ed. 
464. 

82  Buchner  v.  Malloy,  155  Gal.  253,  100  Pac.  687,  688. 
Lindley  on  M. — 76 


§  539  THE  CHARACTER  OF  THE   TENURE.  1202 

and  "subject  to  the  lien  of  a  docketed  judgment."" 
It  has  the  effect  of  a  grant  by  the  United  States  of  the 
right  of  present  and  exclusive  possession  of  the  lands 
located,^*  at  least  for  mining  purposes.^^  Actual  pos- 
session is  not  more  necessary  for  the  protection  of  the 
title  acquired  to  such  a  claim  by  a  valid  location  than 
it  is  for  any  other  grant.^^  It  is  in  its  nature  real  es- 
tate." 

Although  the  locator  may  obtain  a  patent,  this  pat- 
ent adds  but  little  to  his  security.'^ 

S3  Bradford  v.  Morrison,  212  U.  S.  389,  395,  29  Sup.  Ct.  Rep.  349, 
53  L,  ed.  564. 

34  Clipper  M.  Co.  v.  Eli  M.  Co.,  194  U.  S.  220,  226,  24  Sup.  Ct. 
Eep.  632,  48  L.  ed.  944;  East  Central  Eureka  M.  Co.  v.  Central  Eureka 
M.  Co.,  204  U.  S.  266,  271,  27  Sup.  Ct.  Rep.  258,  51  L.  ed.  476;  Brad- 
ford V.  Morrison,  212  U.  S.  389,  394,  29  Sup.  Ct.  Rep.  349,  53  L.  ed. 
564;  Bergquist  v.  West  Virginia  &  Wyoming  Copper  Co.,  18  Wyo.  234, 
106  Pac.  673,  682;  Forbes  v.  Gracey,  94  U.  S.  762,  766,  24  L.  ed.  313,  14 
Morr.  Min.  Rep.  183;  Gillis  v.  Downey,  85  Fed.  483,  487,  29  C.  C.  A.  286; 
Stratton  v.  Gold  Sovereign  M.  &  T.  Co.,  1  Leg.  Adv.  350;  Phoenix  M.  & 
M.  Co.  V.  Scott,  20  Wash.  48,  54  Pac.  777,  778;  McCarthy  v.  Speed,  11 
S.  D.  362,  77  N.  W.  590,  592,  50  L.  R.  A.  184.  See  ante,  §  322, 
note  7,  where  all  the  cases  are  cited. 

36  United  States  v.  Rizzinelli,  182  Fed.  675,  684. 

36  Harris  v.  Kellogg,  117  Cal.  484,  49  Pac.  708,  709;  McCarthy  v. 
Speed,  11  S.  D.  362,  77  N.  W.  590,  593,  50  L.  R.  A.  184;  Bramlett  v.  Flick, 
23  Mont.  95,  57  Pac.  869;  Belk  v.  Meagher,  104  U.  S.  279,  284,  26  L.  ed. 
735,  1  Morr.  Min.  Rep.  510;  Gwillim  v.  Donnellan,  115  U.  S.  45,  49,  5  Sup. 
Ct.  Rep.  1110,  29  L.  ed.  348,  15  Morr.  Min.  Rep.  482;  Gear  v.  Ford, 
4  Cal.  App.  556,  88  Pac.  600,  602;  McCuUoch  v.  Murphy,  125  Fed.  147, 
150;  Holdt  V.  Hazard,  10  Cal.  App.  440,  102  Pac.  540,  541;  McLemore 
V.  Express  Oil  Co.,  158  Cal.  559,  139  Am.  St.  Rep.  147,  112  Pac.  59, 
1  Water  and  Min.   Cas.  232. 

37  Lavagnino  v.  Uhlig,  26  Utah,  1,  99  Am.  St.  Rep.  808,  71  Pac.  1046, 
22  Morr.  Min.  Rep.  610;  S.  C,  in  error,  198  U.  S.  443,  449,  25  Sup. 
Ct.  Rep.  716,  49  L.  ed.  1119;  Bradford  v.  Morrison,  10  Ariz.  214,  86 
Pac.  6. 

38  Chambers  v.  Harrington,  111  U.  S.  350,  353,  4  Sup.  Ct.  Kep.  428, 
28   L,  ed.  452. 


1203  SINCE  ENACTMENT   OP   GENERAL   MINING  LAWS.         §  539 

The  owner  of  such  a  location  is  entitled  to  the  ex- 
clusive possession  and  enjoyment,  against  everyone, 
including  the  United  States  itself.^® 

Where  there  is  a  valid  location  of  a  mining  claim, 
the  area  becomes  segregated  from  the  public  domain 

and  the  property  of  the  locator He  may  sell 

it,  mortgage  it,  or  part  with  the  whole  or  any  por- 
tion of  it  as  he  may  see  fit.*° 

He  is  entitled  to  the  most  plenary  and  summary 
remedies  for  quieting  his  claim  cognizable  in  equity." 

As  was  said  by  the  supreme  court  of  Oregon,*^  the 
general  government  itself  cannot  abridge  the  rights  of 
the  miner.  There  are  equitable  circumstances  bind- 
ing upon  the  conscience  of  the  governmental  proprietor 
that  must  never  be  disregarded.  Rights  have  become 
vested  that  cannot  be  divested  without  the  violation  of 
all  the  principles  of  justice  and  reason."  The  same 
fundamental  rules  of  right  and  justice  govern  nations, 
municipalities,  corporations,  and  individuals.**  The 
government  may  not  destroy  the  locator's  rights  by 
withdrawing  the  land  from  entry  or  placing  it  in  a 
state  of  reservation.'^  • 

39  McFeters  v.  Pierson,  15  Colo.  201,  22  Am.  St.  Rep.  388,  24  Pac. 
1076,  1077;  Gold  Hill  Q.  M.  Co.  v.  Ish,  5  Or.  104,  11  Morr.  Min.  Rep. 
635;  Seymour  v.  Fisher,  16  Colo.  188,  27  Pac.  240,  244;  Reed  v.  Munn, 
148  Fed.  737,  757,  80  C.  C.  A.  215. 

<o  St.  Louis  M.  &  M.  Co.  v.  Montana  Limited,  171  U.  S.  650,  655, 
19  Sup.  Ct.  Rep.  61,  43  L.  ed.  320. 

41  Gillis  V.  Downey,  85  Fed.  483,  488,  29  C.  C.  A.  286. 

42  Gold  Hill  Q.  M.  Co.  v.  Ish,  5  Or.  104,  11  Morr.  Min.  Rep.  635. 

*3  To  the  same  ejBfect,  see  Merced  M.  Co.  v.  Fremont,  7  Cal.  317,  327,   | 
68   Am.   Dec.   262,   7   Morr.   Min.   Rep.   313;    Conger   v.   Weaver,   6   Cal. 
548,  557,  65  Am.  Dec.  528. 

**  United  States  v.  Northern  Pac.  R.  R.,  95  Fed.  864,  880,  37  C.  C.  A. 
290. 

45  Military  and  National  Park  Reservations.  Opinion  Assistant  At- 
torney-General, 25  L.  D.  48;   Instructions,  32  L.  D.  387. 


§  539  THE  CHARACTER  OF  THE  TENURE.  1204 

The  doctrine  hereinbefore  enunciated  has  never  been 
seriously  questioned.  It  has  been  reiterated  in  many 
cases  in  both  the  state  and  federal  courts."® 

The  supreme  court  of  Oregon  has  said  that  the 
nature  of  title  or  rights  acquired  or  held  by  a  locator 
in  possession  of  a  mining  claim  prior  to  his  compliance 
with  the  provisions  of  the  statutes  of  the  United  States 
entitling  him  to  a  patent  is  difficult  to  determine  from 
authorities;  that  prior  to  such  compliance  it  is  agreed 
he  has  an  absolute  right  of  possession;  that  in  many 
states  this  possessory  right  is  by  statute  declared  to 
be  an  interest  in  real  estate  and  subject  to  seizure  and 
sale  as  such,  and  the  decisions  of  the  courts  holding- 
it  to  be  real  estate  are  most,  if  not  all,  based  upon  some 
statutory  provision." 

This  may  be  quite  true;  but  it  is  to  be  remembered 
that  the  statutory  enunciation  of  the  principle  was  in 
the  beginning  but  an  expression  in  a  higher  form  of  a 
rule    which    had    its    origin    in    local    customs, — the 

40  Manuel  v.  WulflP,  152  U.  S.  505,  510,  14  Sup.  Ct.  Rep.  651,  38  L. 
ed.  532;  Black  v.  Elkhorn  M.  Co.,  163  U.  S.  445,  447,  16  Sup.  Ct.  Rep, 
1101,  41  L.  ed.  221;  S.  C,  before  Judge  Knowles,  49  Fed.  549,  553; 
McFeters  v.  Pierson,  15  Colo.  201,  22  Am.  St.  Rep.  388,  24  Pac.  1076, 
1078;  Seymour  v.  Fisher,  16  Colo.  188,  27  Pac.  240;  Wills  v.  Plain, 
4  N.  M.  378,  20  Pac.  798,  802;  Harris  v.  Equator  M.  &  S.  Co.,  3 
McCrary,  14,  8  Fed.  863,  866,  12  Morr.  Min.  Rep.  178;  Keeler  v.  True- 
man,  15  Colo.  143,  25  Pac.  311 ;  Houtz  v.  Gisborn,  1  Utah,  173,  2  Morr. 
Min.  Rep.  340;  Talbott  v.  King,  6  Mont.  76,  9  Pac.  434,  435;  Silver 
Bow  M.  &  M.  Co.  V.  Clark,  5  Mont.  378,  5  Pac.  570,  575;  McKinley 
Creek  M.  Co.  v.  Alaska  United  M.  Co.,  183  U.  S.  563,  571,  22  Sup.  Ct. 
Rep.  84,  46  L.  ed.  331;  McCarthy  v.  Speed,  11  S.  D.  362,  77  N.  W.  590, 
592,  50  L.  R.  A.  184;  Phoenix  M.  &  M.  Co.  v.  Scott,  20  Wash.  48,  54  Pac. 
777,  778;  Mt.  Rosa  M.  M.  &  L.  Co.  v.  Palmer,  26  Colo.  56,  77  Am.  St. 
Rep.  245,  56  Pac.  176,  177,  50  L.  R.  A.  289;  Davidson  v.  Calkins,  92 
Fed.  230,  232;  Bakersfield  &  Fresno  Oil  Co.  v.  Kern  County,  144  CaL 
148,  77  Pac.  892,  893;  Reed  v.  Munn,  148  Fed.  737,  757,  80  C.  C.  A. 
215;  Bradford  v.  Morrison,  212  U.  S.  389,  29  Sup.  Ct.  Rep.  349,  53  L. 
ed.  564. 

«  Herron  v.  Eagle  M.  Co.,  37  Or.  155,  61  Pac.  417. 


1205  COMPARED    WITH    COMMON-LAW    COPYHOLDS.  §    540 

''American  common  law  of  mines," — and  the  accept- 
ance of  the  doctrine  by  the  federal  tribunals  arose  out 
of  a  consideration  of  these  equitable  circumstances." 
It  cannot  be  doubted  that  each  state  may  determine 
for  itself  the  nature  or  character  of  actions  which  may 
be  maintained  in  its  courts  for  the  redress  of  private 
wrongs,  and  may  in  this  behalf,  and  perhaps  others, 
classify  interests  in  real  property  as  chattels  or  chat- 
tels real,  or  declare  that  a  given  privilege  exercised 
with  reference  to  land  shall  not  be  classified  as  an  in- 
terest in  real  estate,  for  the  purpose  of  either  litiga- 
tion or  taxation.  But  this  does  not,  as  we  understand 
it,  militate  against  the  dignity  of  the  estate  in  an  un- 
patented mining  claim  accorded  by  the  decisions  of 
all  the  courts,  state  and  federal,  from  the  beginning. 

The  principles  here  discussed  will  again  be  the  sub- 
ject of  consideration  when  we  deal  with  the  nature  of 
the  remedies  which  are  available  to  the  owner  of  a 
mining  claim  and  the  forum  in  which  actions  are  to  be 
brought  to  redress  injuries  thereto. 

§  540.  Nature  of  the  estate  compared  with  copy- 
holds at  common  law. — It  has  been  said  that  the  inter- 
est of  a  locator  of  a  mining  claim  is,  in  some  respects, 
not  unlike  that  of  a  copyholder  at  common  law;  that 
both  had  their  origin  in  local  customs,  and  in  each  the 
custom  crj'stallized  into  law;  that  the  copyholder  held 
his  land  by  the  custom  of  the  manor,  and  while  the  fee 
remained  in  the-  lord  the  right  to  the  possession  and 
enjoyment  of  the  premises  was  in  him.  He  might 
alienate  his  lands  at  will,  and  on  his  death  they  de- 
scended to  his  heirs;  the  cojDyhoJder  was  a  feeholder, 
yet  the  fee  was  in  the  lord." 

48  See    East   Central   Eureka  M.   Co.   v.   Central   Eureka   M.   Co.,   204 
U.   S.  266,  271,  27   Sup.   Ct.  Rep.  258,  51  L.  ed.  476. 
48  Black  V.  Elkhorn,  52  Fed.  859,  862,  3  C.  C.  A.  312. 


§  541  THE  CHARACTER  OF  THE  TENURE.  1206 

The  same  authority  states  that  the  estate  of  the  copy- 
holder might  be  taken  in  execution  for  the  paj-ment  of 
his  debts.  We  are  not  sure  that  this  is  a  correct  state- 
ment of  the  rule  of  the  common  law.  Blackstone  says, 
speaking  of  this  class  of  estates,  that  no  creditor  could 
take  possession  of  lands,  but  could  only  levy  upon  the 
growing  profits,  so  that  if  the  defendant  aliened  his 
lands  the  plaintiff  was  ousted  of  his  remedy.  There- 
fore, copyhold  lands  were  not  liable  to  be  taken  in 
execution  upon  a  judgment.'"  The  American  authori- 
ties seem  to  support  this  view.°^ 

Be  that  as  it  may,  there  is  one  essential  difference 
between  the  two  estates  with  reference,  at  least,  to  the 
extent  of  the  thing  possessed  and  enjoyed. 

In  copyhold  or  customary  lands,  the  lord  of  the 
manor  is  owner  of  the  minerals,  but  the  tenant  is  in 
possession  of  them,  and  consequently,  in  the  absence 
of  prescription  or  a  special  custom  to  the  contrary,  the 
one  cannot  explore  mines  without  the  consent  of  the 
other,  although  the  tenant  may  continue  the  working 
of  mines  and  quarries  already  opened.'^ 

§  541.  Nature  of  the  estate  compared  with  the  do- 
minium utile  of  the  civil  law. — The  nature  of  the  es- 
tate held  by  a  locator  in  a  mining  claim  bears  some 
resemblance  to  the  emphyteusis  or  dominium  utilt>  of 
the  Roman  or  civil  law.  Although  the  emphi/teuta 
did  not  become  owner  of  the  thing,  yet  he  had  nearly 
all  the  rights  of  an  owner.  It  was  jus  in  re  aliena^ 
which  in  its  extent  and  effects  nearly  resembled  owner- 

60  3  Blackstone,  418,  419. 

61  Watson  on  Sheriffs,  208;  Wildey  v.  Bonny,  26  Miss.  35;  Colvin  v. 
Johnson,  2  Barb.  (N.  Y.)  206;  Bigelow  v.  Finch,  11  Barb.  498,  17 
Barb.  394. 

62  Kogers  on  Mines,  270;  MacSwinney  on  Mines,  72;  Arundell  on 
Mines,   4;    Bainbridge   on    Mines,   4th   ed.,   p.   37. 


1207      COMPARED  WITH  PRE-EMPTIONS  AND  HOMESTEADS.       §  542 

ship.  He  liad  the  full  ri,i»:ht  of  enjoyment,  conse- 
quently the  right  of  possessing  the  thing  and  of  reap- 
ing all  the  fruits  thereof.  He  might  dispose  of  the 
substance  of  the  thing,  transfer  the  exercise  of  his 
right  to  another,  and  alienate  it,  inter  vivos  or  causa 
mortis.  He  might  mortgage  it  and  burden  it  with 
servitudes,  without  requiring  the  consent  of  the  do- 
minus  thereto. 

His  right  to  absolutely  dispose  of  his  estate  was  sub- 
ject only  to  a  preferred  right  of  purchase  in  the 
dominus  at  the  price  oifered.  At  the  death  of  the 
emphyteuta,  the  emphyteusis  descended  to  his  heirs. 
The  emphyteutlcal  right  was  usually  acquired  by  grant, 
although  it  might  be  acquired  by  prescription." 

Dominium  utile  is  a  right  which  the  vassal  hath  in 
the  land,  or  some  immovable  thing  of  his  lord,  to  use 
the  same  and  take  the  profit  thereof,  hereditarily  or 
in  perpetuum.^* 

§  542.  Nature  of  the  estate  compared  with  inchoate 
pre-emption  and  homestead  claims. — Judge  Ross,  in 
the  case  of  Black  v.  Elkhorn,"  makes  a  comparison 
between  the  estate  held  by  a  mining  locator  and  a  pre- 
emption claimant  prior  to  final  entry  and  payment. 
While  for  the  purposes  of  the  case  then  under  con- 
sideration, where  dower  was  asserted  in  an  unpatented 
mining  claim,  the  comparison  was  not  wholly  inapt, 
yet  we  think  the  inference  which  may  be  drawn,  that 
the  estate  of  a  mining  locator  is  of  no  greater  dignity 
than  that  of  an  inchoate  pre-emption  right,  should  not 
pass  unchallenged.  What  are  the  essential  differences 
between  the  two  estates  ? 

53  Kaufman's  Mackeldey,  vol.  i,   §§  324,  325. 

5*  1   Spence's  Equity  Jurisprudence,   31,  33;   Bowers   v.   Keesecker, 
14   Iowa,   301. 
66  52  Fed.  859,  861,  3  C.  C.  A.  312. 


§  542  THE   CHARACTER   OF    THE   TENURE.  1208 

(1)  By  their  pre-emption  laws,  the  United  States 
did  not  enter  into  any  contract  with  the  settler,  nor 
incur  any  obligation  that  the  land  occupied  by  him 
shall  ever  be  offered  for  sale.  They  simply  declared 
that  in  case  any  of  their  lands  are  thrown  open  for  sale 
the  privilege  to  purchase  should  be  first  given  to  par- 
ties who  had  settled  upon  and  improved  them.®* 

No  estate  in  the  land  was  acquired  or  right  thereto 
vested  in  the  claimant  of  an  inchoate  pre-emption 
right,  unless  and  until  the  amount  of  purchase  money 
was  paid."  The  same  doctrine  applies  to  homestead 
claims.®* 

With  reference  to  its  mineral  lands,  the  government 
has  declared  that  they  are  free  and  open  to  explora- 
tion and  purchase,^^  and  a  positive  compact  is  made 
between  the  government  and  the  discoverer  and  lo- 
cator, whereby  the  latter,  upon  compliance  with  the 
law,  is  clothed  with  the  exclusive  right  of  possession 
and  enjoyment."" 

r     The  locator  of  a  mining  claim  is  given  a  higher  es- 
-=^  tate  than  is  given  the  settler  or  locator  under  any  other 

'   land  laws.*^ 

88  Hutchings  v.  Low,  15  Wall.  77,  21  L.  ed.  82;  Campbell  v.  Wade, 
132  U.  S.  34,  38,  10  Sup.  Ct.  Rep.  9,  33  L.  ed.  240;  Black  v.  Elkhorn 
M.  Co.,  49  Fed.  549,  553;  Graham  v.  Great  Falls  Water  Power  &  T.  Co., 
30  Mont.  393,  76  Pac.  808. 
/  57  Wittenbrock  v.  Wheadon,  128  Cal.  150,  79  Am.  St.  Rep.  32,  60  Pac. 
664,  665,  and  cases  cited. 

58  Wagstaff  V.  Collins,  97  Fed.  3,  8,  and  cases  cited. 

59  Rev.  Stats.,  §2319;  17  Stats,  at  Large,  91;  Comp.  Stats.  1901,  p. 
1424;  5  Fed.  Stats.  Ann.  4. 

60  Rev.  Stats.,  §2322;  Erhardt  v.  Boaro,  113  U.  S.  527,  535,  5  Sup. 
Ct.  Rep.  560,  28  L.  ed.  1113;  Black  v.  Elkhorn  M.  Co.,  49  Fed.  549,  550. 

61  O'Connell  v.  Pinnacle  Gold  Mining  Co.,  140  Fed.  854,  855,  4  L.  R. 
/    A.,   N.    S.,   219,    72    C.    C.   A.    645.     As   to    the   general   rule   regarding 

(      "vested  rights"   in  public  lands  and  when  they  attach  so  as  to  be  im- 

^      mune  from  congressional  interference,  see  Graham  v.  Great  Falls  Water 

^"      Power  &  T.  Co.,  30  Mont.  393,  76  Pac.  808,  and  cases  cited;   Instrue- 


1209      COMPARED  WITH  PRE-EMPTIONS  AND  HOMESTEADS.       §  542 

If  the  government,  after  a  valid  mining  location  has 
been  made,  could  deprive  the  locator  of  his  rights,  his 
right  of  possession  certainly  would  not  be  exclusive. 

(2)  The  pre-emptor  is  required  to  apply  for  patent 
within  a  fixed  period  of  time.  There  is  nothing  in  the 
mining  law  requiring  a  locator  to  proceed  to  patent  at 
all."  He  may  never  do  so,  yet  his  estate  is  fully  main- 
tained in  its  integrity  so  long  as  the  law  which  is  a 
muniment  of  his  title  is  complied  with.  An  applica- 
tion for  a  patent  is  not  essential  to  the  acquisition  or 
maintenance  of  a  mining  claim."  The  patent  adds  but 
little  to  the  security  of  the  locator.'*  Certainly  the 
failure  to  apply  for  one  or  the  fact  that  one  has  not 
been  issued  in  no  way  militates  against  the  validity  of 
the  location.®^ 

That  the  general  government  itself  cannot  deprive 
the  locator  of  rights  accrued  under  the  mining  laws 
has,  we  think,  been  fully  demonstrated. 

(3)  Prior  to  entry  and  payment,  the  pre-emptor  can- 
not convey  or  assign  his  interest  to  others.*' 

Such  a  conveyance  or  assignment  would  extinguish 
the  pre-emption  right/^ 

tions,  32  L.  D.  383.     See,  also,  East  Central  Eureka  M.  Co.  v.  Central 
Eureka  M.  Co.,  204  U.  S.  266,  271,  27  Sup.  Ct.  Kep.  258,  51  L.  ed.  476. 

62  O'Connell  v.  Pinnacle  Gold  Mines  Co.,  131  Fed.   106,   109. 

63  Coleman  v.  McKenzie,  29  L,  D.  359;  Nome  &  Sinook  Co.  v.  Town- 
site  of  Nome,  34  L.  D.  276. 

64  Chambers  v.  Harrington,  111  U.  S.  350,  353,  4  Sup.  Ct.  Eep.  428, 
28  L.  ed.  452;  Gold  Hill  Q.  M.  Co.  v.  Ish,  5  Or.  104,  11  Morr.  Min.  Rep. 
635;  Chapman  v.  Toy  Long,  4  Saw.  28,  Fed.  Cas.  No.  2610,  1  Morr.  Min. 
Eep.  497;  Shafer  v.  Constans,  3  Mont.  369,  1  Morr.  Min.  Rep.  147. 

68  Clipper  M.  Co.  y.  Eli  M.  &  L.  Co.,  194  U.  S.  220,  224,  24  Sup. 
Ct.  Rep.  632,  48  L.  ed.  944. 

66  Dillingham  v.  Fisher,  5  Wis.  475;  McLane  v.  Bovee,  35  Wis.  27; 
Trulock  V.  Taylor,  26  Ark.  54;  Busch  v.  Donohue,  31  Mich.  482;  Frisbie 
V.  Whitney,  9  Wall.  187,  19  L.  ed.  668;  Aiken  v.  Ferry,  6  Saw.  79, 
Fed.  Cas.  No.  112;  Lamb  v.  Davenport,  18  Wall.  307,  314,  21  L.  ed.  759; 
Schoolfield  v.  Houle,  13  Colo.  394,  22  Pac.  781,  782, 

•7  Quinn  y.  Kenyon,  38  Cal.  499. 


§  542  THE   CHARACTER   OF    THE   TENURE.  1210 

The  right  to  transfer  a  mining  claim  has  never  been 
questioned.^^ 

(4)  It  is  not  until  entry  and  pajTnent  under  a  pre- 
emption claim  that  the  land  becomes  subject  to  taxa- 
tion by  the  state." 

As  we  have  heretofore  shown,"  mining  claims  are 
so  subject. 

(5)  Inchoate  pre-emption  claims  are  not  subject  to 
execution  so  as  to  enable  the  purchaser  at  the  sale  to 
obtain  title  from  the  government.^^ 

The  contrary  has  always  been  the  rule  as  to  mining 
claims. ^^ 

(6)  An  inchoate  pre-emption  could  not  be  disposed 
of  by  will."  Heirs  alone  would  have  the  right  to  com- 
plete the  entr>^  In  such  cases  the  heirs  do  not  take  ^ 
title  by  descent  from  their  ancestor,  but  the  land  is 
conveyed  to  them  directly  from  the  United  States  by 
virtue  of  the  privilege  of  purchase  given  to  them  ex- 
pressly by  the  provisions  of  section  twenty-two  hun- 
dred and  sixty-nine  of  the  Revised  Statutes.'^* 

In  the  case  of  the  death  of  a  homestead  claimant  who 
has  earned  title  to  the  land  the  right  to  submit  final 

68  St.  Louis  M.  &  M.  Co.  v.  Montana  M.  Co.,  171  U.  S.  650,  655, 
19  Sup.  Ct.  Eep.  61,  43  L.  ed.  320. 

69  Carroll  v.  Saflford,  3  How.  440,  441,  11  L.  ed.  671;  Witherspoon  v. 
Duncan,   4  Wall.   210,   219,   18   L.   ed.   339. 

TO  Ante,  §  539. 

71  Moore  v.  Besse,  43  Cal.  511,  514;  Bray  v.  Eagsdale,  53  Mo.  170; 
Cravens  v.  Moore,  61  Mo.  178;  1  Freeman  on  Executions,  §  176;  Daugh- 
erty  v.  Marcuse,  3  Head,  323;  Crutsinger  v.  Catron,  10  Humph.  24; 
Ehea  v.  Hughes,  1  Ala.  219,  34  Am.  Dec.  772;  Hatfield  v.  Wallace,  7 
Mo.  112;  Brown  v.  Massey,  3  Humph.  470. 

72  Eeed  v.  Munn,  148  Fed.   737,  757,  80  C.  C.  A.  215. 

73  Wittenbrock  v.  Wheadon,  128  Cal.  150,  79  Am.  St.  Kep.  32,  60  Pac. 
664.  665,  citing  Rogers  v.  Clemans,  26  Kan,  522. 

74  Id. 


1211      COMPARED  WITH  PRE-EMPTION'S  AND  HOMESTEADS.       §  542 

proof  and  obtain  patent  is  in  the  widow  under  the 
terms  of  the  statute." 

Heirs  would  only  be  entitled  (under  the  statute)  in 
the  event  there  was  no  widow. ^® 

In  the  absence  of  any  statute  upon  the  subject,  the 
privilege  given  by  the  government  would  lapse  with 
the  death  of  the  pre-emptor." 

Devisees,  as  such,  would  not  be  recognized  by  the 
government.^® 

Even  an  administrator  could  not  perfect  the  right, 
unless  it  was  established  that  there  was  in  existence 
some  person  for  whose  benefit  the  right  might  be  per- 
fected.^^ 

Unpatented  mining  claims  descend  to  the  heir,*"  or 
may  be  devised  the  same  as  patented  claims  or  other 
classes  of  real  property. 

We  have  heretofore  shown®^  the  analogy  between  the 
mine  locator's  estate  and  the  dominium  utile  of  the 
civil  law.  No  such  analogy  exists  with  reference  to 
pre-emption  claims.®^ 

What  has  heretofore  been  said  in  reference  to  in- 
choate jDre-emption  claims  applies  with  equal  force  to 
federal  homestead  claims  prior  to  final  entry.  It  seems 
to  us  that  the  distinction  between  the  character  of  the 

75  Rev.  stats.,  §2291;  Boyle  v.  Wolfe,  27  L.  D.  572;  McCune  v. 
Essig,  199  U.  S.  382,  388,  26  Sup.  Ct.  Rep.  78,  50  L.  ed.  273. 

76  Currans  v.  Williams'  Heirs,  20  L.  D.  109;  Rooney  v.  Bourke's 
Heirs,  27  L.  D.  596;  McCune  v.  Essig,  199  U.  S.  382,  389,  26  Sup.  Ct. 
Rep.  78,  50  L.  ed.  273.     See  Heirs  of  May  Lyon,  40  L.  D.  489. 

77  Wittenbroek  v.  Wheadon,  128  Cal.  150,  79  Am.  St.  Rep.  32,  60  Pac. 
664,  665. 

78  Rev.  Stats.,  §2269;  5  Stats,  at  Large,  620;  Comp.  Stats.  1901,  p. 
1380;   6  Fed.  Stats.  Ann.  282. 

79  Elliott  V.   Figg,  59   Cal.   117,   118. 

80  O'Connell  v.  Pinnacle  Gold  Mines  Co.,  131  Fed.  106,  109. 

81  Ante,   §  541. 

«2  Bowers  v.  Keesecker,  14  Iowa,  301. 


§  543  THE   CHARACTER   OF   THE   TENURE.  1212 

estate  held  by  a  pre-emptioner  or  homestead  claimant^ 
prior  to  final  entry,  and  the  owner  of  a  perfected  min- 
ing location  is  decidedly  marked. 

It  has  been  said  that  the  mining  laws  provide  for 
three  classes  of  titles: — 

(1)  Possessory:  a  location  prior  to  entry  and  pay- 
ment; 

(2)  Complete  equitable:  a  location  after  entry  and 
payment  and  before  patent; 

(3)  Fee  simple:  after  patent.®' 

While  this  may  be  true  in  one  sense,  yet  a  patent 
cannot  confer  any  greater  rights  than  those  flowing 
from  a  valid  perfected  mining  location.  Pre-emption, 
and  homestead  claims  pass  through  the  same  grada- 
tions of  title,  but  the  nature  and  extent  of  the  posses- 
sory right  conferred  are  essentially  different. 

§  543.  Dower  within  the  states. — Each  state  regu- 
lates for  itself  the  laws  of  descent,  the  domestic  rela- 
.  tion,  and  property  rights  between  husband  and  wife. 
The  subject  of  dower  is  one  upon  which  congress  may 
legislate  so  far  as  the  territories  are  concerned,  but 
within  the  states  it  is  powerless  to  grant  the  right,  or 
deny  its  existence  where  the  state  creates  it.  There- 
fore, in  determining  what  rights,  if  any,  the  wife  has 
in  the  lands  or  possessions  of  the  husband,  in  any 
given  state,  we  must,  as  a  rule,  look  to  state  legisla- 
tion and  the  decisions  of  state  courts.  Of  the  precious 
metal  bearing  states,  no  dower  right  whatever  exists 
in  Arizona,  California,  Colorado,  Idaho,  Nevada,  New 
Mexico,  North  Dakota,  South  Dakota,  Washington,  or 

83  America  Hill  Quartz  Mine,  3  Sickle's  Min.  Dec.  377,  385;  Benson 
M.  etc.  Co.  V.  Alta  M.  etc.  Co.,  145  U.  S.  428,  430,  12  Sup.  Ct.  Eep. 
877,  36  L.  ed.   762. 


1213  DOWEB  RIGHTS.  §  543 

Wyoming.  In  Montana  a  widow  is  entitled  to  the 
third  part  of  all  lands  whereof  her  husband  was  seised 
of  an  estate  of  inheritance,  and  equitable  estates  are 
subject  to  such  dower  right." 

There  can  be  no  doubt  that  as  to  a  patented  mining 
claim,  or  one  that  has  passed  to  entry  and  for  which  a 
certificate  of  purchase  has  been  issued,  the  dower  right 
would  attach,  the  same  as  it  would  to  any  other  class 
of  lands;  but  as  to  whether  such  right  could  be  asserted 
in  a  perfected  mining  location  prior  to  entry  and  pay- 
ment has  been  the  cause  of  serious  controversy. 

In  the  case  of  Black  v.  Elkhorn  Mining  Co.,"  Judge 
Knowles  held  that  such  an  estate  was  subject  to  the 
wife's  dower,  but  where  the  husband  had  conveyed 
the  property  to  a  purchaser  who  subsequently  applied 
for  and  received  a  patent,  the  wife  having  failed  to 
assert  her  rights  by  adverse  claim,  the  dower  right 
was  lost. 

The  case  was  taken  to  the  United  States  circuit  court 
of  appeals,*®  which  court  held  that  a  mere  locator  of  a 
mining  claim,  owning  only  a  possessory  right  conferred 
by  the  statute,  has  no  such  estate  in  the  property  as 
against  the  United  States  or  its  grantee  as  will  permit 
rights  of  dower  to  be  predicated  thereon  by  virtue  of 
any  state  legislation.  In  other  words,  Judge  Knowles 
gave  the  right  judgment  but  the  wrong  reason  for  it. 
The  supreme  court  of  the  United  States  affirmed  the 
ruling  of  the  circuit  court  of  appeals"  on  parallel  lines 

84  Civ.  Code,  §228;  Eev,  Code  1907,  §3708;  Chadwick  v.  Tatem,  9 
Mont.  354,  23  Pac.  729,  731 ;  Black  v.  Elkhorn  M.  Co.,  47  Fed.  600,  602. 

85  47  Fed.  600,  602. 

86  52  Fed.  859,  860,  3  C.  C.  A.  312. 

87  Black  V.  Elkhorn  M,  Co.,  163  U.  S.  445,  447,  16  Sup.  Ct.  Rep. 
1101,  41  L.  ed.  221. 


§  544  THE    CHARACTER   OF   THE   TENURE.  1214 

of  reasoning,  without,  however,  intending  to  impair 
the  dignity  of  the  miner's  estate  in  a  location.^® 

To  what  extent  the  doctrine  of  the  supreme  court  of 
the  United  States  might  be  deemed  binding  on  the 
conscience  of  the  state  courts  is  a  question  not  neces- 
sary for  us  to  determine.^®  The  result  reached  is 
manifestly  in  consonance  with  the  preconceived  no- 
tions of  practitioners  in  the  mining  regions.  A  con- 
trary rule  would  have  disturbed  many  mining  titles 
and  opened  the  door  to  vexatious  litigation.  If  in  the 
process  of  reasoning  by  which  the  ultimate  conclusion 
has  been  reached  the  dignity  of  the  mining  locator's 
estate  has  suffered  to  a  slight  extent,  it  has  suffered 
in  a  good  cause.  We  are  fully  justified,  from  the  fore- 
going authorities,  in  accepting  as  a  settled  doctrine, 
that  in  states  where  the  dower  right  exists  by  virtue 
of  state  legislation,  such  right  will  not  attach  to  a  min- 
ing claim  held  simply  by  location. 

The  states  of  Oregon  and  Utah  have  dower  laws 
similar  to  those  of  Montana.  Nebraska  and  Florida, 
both  of  which  states  are  nominally  subject  to  the  gen- 
eral mining  laws  of  congress,  but  which  are  not  classi- 
fied as  metal-bearing  states,  likewise  make  provision 
for  dower  rights  in  the  wife.'° 

§  544.  Dower  within  the  territories. — Alaska  is  the 
only  remaining  territory  subject  to  congressional  legis- 
lative control.  The  law  as  to  dower  in  Alaska  is  as 
follows : — 

88  Bradford  v.  Morrison,  212  U.  S.  389,  396,  29  Sup.  Ct.  Eep.  349, 
53  L.  ed.  564. 

89  Held  to  be  binding  as  applying  the  principle  to  community  prop- 
erty.    Phoenix  M.  &  M.  Co.  v.  Scott,  20  Wash.  48,  54  Pac.  777,  778. 

80  For  interesting  note  on  the  subject  of  "Dower  in  Mines,"  see  3 
C.  C.  A.  316. 


1215  DOWER  RIGHTS.  §  544 

The  widow  of  every  deceased  person  shall  be  en- 
titled to  dower  or  the  use  during  her  natural  life  of 
one-third  part  in  value  of  all  the  lands  whereof  her 
husband  died  seised  of  an  estate  of  inheritance.'^ 

The  construction  applied  to  this  statute  is  in  effect 
the  same  as  applied  by  the  courts  in  Montana.  The 
wife  has  no  dower  interest  in  a  mining  claim  sold  by 
her  husband  during  his  lifetime,  and  a  husband's  in- 
terest in  a  mining  claim  is  not  subject  to  any  possible 
encumbrances  of  the  wife  by  way  of  dower  in  the  prem- 
ises.'^ 

It  may  be  conceded  that  with  the  exception  of  those 
states  heretofore  enumerated,  and  the  territory  of 
Alaska,  the  dower  right  does  not  exist. 

Whether  or  not  it  is  necessary  in  any  of  the  states  or 
in  Alaska  for  a  wife  to  join  with  the  husband  in  a 
conveyance  of  real  property,  by  which  term  we  in- 
clude mining  locations,  depends,  of  course,  upon  the 
laws  of  the  several  state  and  territorial  jurisdictions.'^ 
It  is  beyond  the  scope  of  this  treatise  to  enter  into  a 
detailed  statement  of  the  rules  of  law  regulating  con- 
veyancing in  these  different  states.  They  are  general 
laws,  aft'ecting  all  classes  of  real  property  without  dis- 
tinction. 

»i  Carter's    Annotated    Codes,    §  36,    p.    363. 

92  Bechtol  V.  Bechtol,  2  Alaska,  397,  401. 

98  It  has  been  held  in  Idaho  that  a  mining  claim  located  in  that  state 
by  a  husband  is  community  property.  Jacobson  v.  Bunker  Hill  & 
Sullivan  M.  &  C.  Co.,  2  Idaho,  863,  3  Idaho,  126,  28  Pac.  396.  A 
contrary  doctrine  seems  to  have  been  reached  by  the  supreme  court  of 
Washington.  Phoenix  M.  &  M.  Co.  v.  Scott,  20  Wash.  48,  54  Pac.  777, 
778.  As  to  New  Mexico,  see  McAlister  v.  Hutchinson,  12  N.  M.  Ill, 
75  Pac.  41,  42. 


CHAPTEEII. 


THE  NATURE  AND  EXTENT  OF  PROPERTY  RIGHTS  CON- 
FERRED BY  LODE  LOCATIONS. 

Abticle    I.    Introductory — Intralimital  Rights. 
II.    Ceoss-Lodes. 


Article  I.    Introductory — Intralimital  Rights. 


548. 
549. 


550. 


§  551. 


General  observations. 

Classification  of  rights 
with  reference  to  bound- 
aries. 

Extent  of  the  grant  as 
defined  by  the  statute. 

The  right  to  the  surface 
and  presumptions  flow- 
ing therefrom. 


§  552.  Intralimital  rights  not  af- 
fected by  the  form  of 
surface    location. 

§  553.  Pursuit  of  the  vein  on  its 
course  beyond  bounding 
planes  of  the  location 
not  permitted. 


§  548.  General  observations. — It  has  been  satisfac- 
torily established  that  the  estate  created  by  a  valid 
perfected  mining  location,  as  between  the  locator  and 
everj^one  else  save  the  government,  is  in  the  nature  of 
a  fee  simple.  Under  ordinary  circumstances  this 
would  be  a  sufficient  characterization  of  the  estate. 
The  attributes  of  a  fee  simple  estate  are  well  under- 
stood, and  no  explanation  is  required.  But  the  peculi- 
arities of  the  mining  law  render  it  necessary  to  elab- 
orate and  define  with  greater  particularity  than  is 
possible  by  the  use  of  a  single  descriptive  term  the 
nature  and  extent  of  property  rights  conferred  by 
perfected  mining  locations. 

There  are  certain  rights  which  may  be  said  to  be 
common  to  all  classes  of  locations.  There  are  others 
which  are  peculiar  to  one  or  the  other.  In  order  to 
treat  the  subject  analytically,  we  are  compelled  to  deal 
with  the  two  classes  separately,  first  considering  the 
subject  of  lodes,  or  veins. 

(1216) 


1217  CX.ASSIFICATION  OF  RIGHTS.  §§  549.  550 

§  549.  Classification  of  rights  with  reference  to 
boundaries. — Property  rights  conferred  by  lode  loca- 
tions may  be  subdivided  for  the  puipose  of  convenience 
into  two  classes: — 

(1)  Those  which  are  confined  to  things  embraced 
within  tlie  boundaries  of  the  location.  By  the  term 
"boundaries,"  as  we  here  employ  it,  we  include  not 
only  the  surface  lines,  but  the  vertical  planes  drawn 
downward  through  them.  If  we  may  be  excused  for 
introducing  into  the  mining  vocabulary  coined  and 
eccentric  words,  we  would  classify  these  rights  as 
mtralimital; 

(2)  Those  which,  while  depending  for  their  exist- 
ence upon  the  ownership  of  things  within  the  bound- 
aries, may  be  exercised  under  certain  conditions  and 
restrictions  out  of,  and  beyond,  those  boundaries. 
These  rights  may  be  classified  as  extralimital.^ 

Whether  these  terms  will  ever  come  into  general  use 
or  not,  they  will  at  least  enable  the  author  to  formulate 
his  views,  express  them  according  to  his  conception  of 
the  law,  and  group  the  different  elements  under  dis- 
tinctive and  homogeneous  titles.  For  the  purjoose  of 
classification,  therefore,  we  may  say  that  property 
rights  flowing  from  a  valid  lode  location  are  either 
intralimital  or  extralimital.  We  will  examine  the 
nature  and  extent  of  these  rights  in  the  order  named. 

§  550.  Extent  of  the  grant  as  defined  by  the  statute. 
Section  twenty-three  hundred  and  twenty-two  of  the 
Eevised  Statutes  provides   that, — 

1  The  supreme  court  of  Colorado  approves  these  classifications  but  pre- 
fers intraliminal  and  extraliminal  to  the  terms  used  by  the  author. 
Jefferson  M.  Co.  y.  Anchoria-Leland  M.  &  M.  Co.,  32  Colo.  176,  75  Pac. 
1070,   1073. 

Lindley  on  M. — 77 


§  550  INTRODUCTORY — INTRALIMITAL   RIGHTS.  1218 

Locators  shall  have  the  exclusive  right  of  posses- 
sion and  enjoyment  of  all  the  surface  included  within 
the  lines  of  their  locations,  and  of  all  veins,  lodes,  or 
ledges,  throughout  their  entire  depth,  the  top,  or 
apex,  of  which  lies  inside  of  such  surface  lines  ex- 
tended downward  vertically,  although  such  veins, 
lodes,  or  ledges  may  so  far  depart  from  a  perpendicu- 
lar in  their  course  downward  as  to  extend  outside 
the  vertical  side-lines  of  such  surface  locations. 

This  section  is  replete  with  what  Judge  Lewis,  in 
considering  another  portion  of  mining  law,  character- 
izes as  "grammatical  solecisms."^ 

In  the  language  of  Dr.  Kaymond, — 

This  phraseology  has  the  merit  of  clearly  convey- 
ing the  meaning  intended,  though  descriptive  geom- 
etry and  the  English  language  suffer  somewhat  in, 

the  operation But  the  goal  is  reached,  though 

the  vehicle  is  damaged.^ 

The  section  clearly  grants  the  following  intralimital 
rights : — 

(1)  Exclusive  dominion  over  the  surface.* 

(2)  The  right  to  certain  parts  of  all  veins  whose 
tops,  or  apices,  are  found  within  vertical  planes  drawn 
downward  through  the  surface  boundaries.^  The  ex- 
tent to  which  the  locator  is  entitled  to   such  veins 

2  Hobart  v.  Ford,  6  Nev.  77,  12  Morr.  Min.  Kep.  236. 

s  Law  of  the  Apex,  Trans.  Am.  Inst.  M.  E.,  vol.  xii,  pp.  387,  392. 

*  Mullins  V.  Butte  Hardware  Co.,  25  Mont.  525,  65  Pac.  1004,  1007. 

5  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  etc.  Co.,  171  U.  S.  55, 
88,  18  Sup.  Ct.  Kep.  895,  43  L.  ed.  72;  Calhoun  Gold  M.  Co.  v.  Ajax 
Gold  M.  Co.,  182  U.  S.  499,  508,  21  Sup.  Ct.  Rep.  885,  45  L.  ed.  1200; 
S.  C,  27  Colo.  1,  83  Am.  St.  Eep.  17,  59  Pac.  607,  50  L.  R.  A.  209; 
Campbell  v.  Ellet,  167  U.  S.  116,  119,  17  Sup.  Ct.  Eep.  765,  42  L.-ed. 
101,  18  Morr.  Min.  Rep.  669;  Crown  Point  M.  Co.  v.  Buck,  97  Fed.  462, 
465,  38  C.  C.  A.  278;  Mt.  Rosa  M.  &  M.  Co.  v.  Palmer,  26  Colo.  56, 
77  Am.  St.  Rep.  245,  56  Pac.  176,  177,  50  L.  R.  A.  289;  Judge  Hallett's 
charge  in  Matoa  G.  M.  Co.  v.  Chicago-Cripple  Creek  G.  M.  Co.,  Min- 
ing and  Scientific  Press,  vol.  78,  p.  374. 


1219      RIGHT  TO  SURFACE  AND  PRESUMPTIONS  THEREFROM.     §  551 

within  his  surface  boundaries  will  depend  upon  a  num- 
ber of  circumstances,  to  be  fully  considered  in  connec- 
tion with  the  subject  of  extralateral  rights. 

It  is  quite  manifest  from  a  reading  of  the  section 
that  no  title  passes  hy  virtue  of  the  location  to  any  part 
of  any  vein  which  has  its  top,  or  apex,  wholly  outside 
of  the  boundaries  of  such  location. 

§  551.  The  right  to  the  surface  and  presumptions 
flowing  therefrom. — The  exclusive  right  of  possession 
conferred  upon  the  locator  by  the  statute  is  as  much  the 
property  of  the  locator  as  the  vein  or  lode  by  him  dis- 
covered and  located.®  This  is  undoubtedly  true  as  be- 
tween the  locator  and  all  others  attempting  to  invade 
his  rights  acquired  by  location.  There  is  a  tendency, 
however,  in  the  general  land  office  and  in  some  of  the 
courts  to  limit  the  use  of  the  surface  to  strictly  mining 
purposes.^  The  right  to  cut  timber  growing  on  a 
mining  claim  is  limited  to  the  necessity  for  its  use  in 
the  working  of  the  mine.  A  locator  would  have  no 
right  to  cut  the  timber  and  sell  or  remove  it.* 

If  the  location  is  in  a  national  forest,  the  locator 
would  not  be  permitted  to  establish  thereon  a  hotel, 
saloon  or  carry  on  any  business  other  than  mining 
without  the  consent  of  the  secretary  of  agriculture," 
and  that  department  is  said  to  have  the  control  over 
the  timber  growing  on  an  unpatented  mining  claim  in 

6  Clipper  M.  Co.  v.  Eli  M.  &  L.  Co.,  194  U.  S.  220,  226,  24  Sup.  Ct. 
Rep.  632,  48  L.  ed.  944. 

T  United  States  v.  Rizzinelli,  182  Fed.  675,  680. 

8  Teller  v.  United  States,  113  Fed.  273,  281,  51  C.  C.  A.  230.  A 
homesteader,  prior  to  patent  or  final  entry,  has  no  right  to  tap  treea 
for  turpentine  and  gum,  and  may  be  sued  therefor  after  abandoning 
his  homestead.  Parish  v.  United  States,  184  Fed.  590,  592.  Such  acts 
are  now  declared  to  be  misdemeanors.  Act  of  June  4,  1906,  34  Stats. 
at  Large,   208. 

»  United  States  v.  Rizzinelli,  182  Fed.  675,  680. 


§  551  INTRODUCTORY — INTRALIMITAL   RIGHTS.  1220 

the  national  forests.^"  It  is  well  recognized  that  in  the 
administration  of  the  mineral  land  laws  there  is  fre- 
quently a  temptation  to  locate  mining  claims  for  a 
purpose  other  than  mining,  e.  g.,  the  control  of  water 
to  which  the  land  is  riparian,  securing  rights  of  way 
for  commercial  transmission  lines  without  the  neces- 
sity of  proceeding  under  the  right  of  way  acts,  and 
submitting  to  the  conditions  imposed  by  such  acts,  and 
the  acquisition  of  strategic  points  for  the  development 
of  water-power.  In  such  cases  the  land  department 
insists  on  its  right  to  inquire  into  and  determine  the 
good  faith  of  the  locator,  and  this  whether  application 
for  patent  is  pending  or  not."  With  these  possible 
limitations  as  to  use,  the  right  of  exclusive  possession 
and  enjoyment  of  the  surface  is  unquestioned.  What- 
ever may  be  reserved  out  of  the  grant  created  by  the 
perfection  of  a  valid  lode  location,  one' thing  is  quite 
manifest.  The  right  of  a  senior  locator  to  the  exclu- 
sive possession  of  the  surface  cannot  be  invaded,  as- 
suming, of  course,  that  at  the  time  to  which  the 
location  relates  no  rights  of  way  or  servitudes  were 
imposed  upon  the  land.^^  While,  as  we  shall  hereafter 
see,  outside  apex  proprietors  may  penetrate  under- 
neath the  surface  in  the  lawful  pursuit  of  their  veins, 
the  law  expressly  preserves  the  surface,  likewise  the 
subsurface,^^  from  invasion. 

The  only  qualification  to  this  rule  is  the  privilege 
accorded  under  certain  circumstances  to  junior  loca- 
tors to  place  the  lines  of  their  locations  upon  or  across 
the  senior  claim,  discussed  in  previous  sections.^*     The 

10  Lewis  V.  Garlock,  168  Fed.  153,  154. 

11  In  re  Yard,  38  L.  D.  59. 

12  Ante,  §  531. 

13  St.  Louis  M.  &  M.  Co.  v.  Montana  M.  Co.,  194  U.  S.  235,  237,  24 
Sup.    Ct.   Eep.    654,    48   L.    ed.    953. 

1*  Ante,  §§363,  363a. 


1221      RIGHT  TO  SURFACE  AND  PRESUMPTIONS  THEREFROM.     §  551 

use  of  such  privilege  is  not  to  be  considered  an  in- 
vasion, as  no  rights  can  be  asserted  thereby  in  hostility 
to  the  senior  title. 

What  are  the  presumptions,  if  any,  flowing  from  the 
ownership  of  the  surface? 

Prima  facie,  everything  within  the  vertical  bounding 
planes  belongs  to  the  locator. 

In  the  language  of  Judge  Hallett, — 

We  may  say,  that  there  is  a  presumption  of  owner- 
ship in  every  locator  as  to  the  territory  covered  by 
his  location,  and  within  his  own  boundaries  he  is 
regarded  as  the  owner  of  all  valuable  deposits  until 
someone  shall  show  a  higher  right. 

While  the  courts  do  not  altogether  agree  as  to  the 
weight  of  testimony  necessary  to  overthrow  this  pre- 
sumption, there  is  an  undoubted  consensus  of  opinion 
in  support  of  the  above  rule." 

15  Boston  &  Montana  Cons.  C.  «&  S.  M.  Co.  v.  Montana  Ore  P.  Co., 
188  U.  S.  632,  638,  23  Sup.  Ct.  Rep.  440,  47  L.  ed.  626;  St.  Louis  M. 
&  M.  Co.  V.  Montana  M.  Co.,  113  Fed.  900,  902,  51  C.  C.  A.  530;  S.  C, 
on  appeal,  194  U.  S.  235,  24  Sup.  Ct.  Rep.  654,  48  L.  ed.  953;  Parrot 
Silver  &  Copper  Co.  v.  Heinze,  25  Mont.  139,  87  Am.  St.  Rep.  3S6,  64  Pac. 
326,  329;  Maloney  v.  King,  25  Mont.  188,  64  Pac.  351,  352;  Leadville  M. 
Co.  V.  Fitzgerald,  4  Morr.  Min,  Rep.  380,  385,  Fed.  Cas.  No.  8158;  Doe  v. 
Waterloo  M.  Co.,  54  Fed.  935,  938;  Cons.  Wyoming  M.  Co.  v.  Champion 
M.  Co.,  63  Fed.  540,  551;  Duggan  v.  Davey,  4  Dak.  110,  26  N.  W.  887, 
890;  Iron  S.  M.  Co.  v,  Campbell,  17  Colo.  267,  29  Pac.  513;  Chee?man 
V.  Shreve,  37  Fed.  36,  37,  16  Morr.  Min.  Rep.  79;  Montana  Co.,  Limited, 
V.  Clark,  42  Fed.  626,  630,  16  Morr.  Min.  Rep.  80;  Cheesman  v.  Hart, 
42  Fed.  98,  103,  12  Morr.  Min.  Rep.  263;  Bell  v.  Skillicorn,  6  N.  M. 
399,  28  Pac.  768;  Jones  v.  Prospect  Mt.  T.  Co.,  21  Nev.  339,  31  Pac. 
642;  Maloney  v.  King,  27  Mont.  428,  71  Pac.  469,  470;  Montana 
Ore  P.  Co.  V.  Boston  &  M.  Cons.  C.  &  S.  M.  Co.,  27  Mont.  536,  71 
Pac.  1005,  1007;  State  v.  District  Court,  28  Mont.  528,  73  Pac.  230, 
231;  Maloney  v.  King,  30  Mont.  158,  76  Pac.  4,  5;  Heinze  v.  Boston 
&  M.  Consol.  C.  &  S.  M.  Co.,  30  Mont.  484,  77  Pac.  421,  423;  Ophir 
S.  M.  Co.  V.  Superior  Court,  147  Cal.  467,  82  Pac.  70,  74,  3  Ann.  Cas. 
340;  Grand  Central  Min.  Co.  v.  Mammoth  M.  Co.,  29  Utah,  490,  83 
Pac.  648,  667;  S.  C,  appeal  dismissed,  213  U.  S.  72,  29  Sup.  Ct.  Rep. 
413,  53  L.  ed.  702.     See,  also,  post,  §  866. 


§  552  INTRODUCTORY — INTRALIMITAL   RIGHTS.  1222 

We  may  safely  base  our  discussion  of  the  more  im- 
portant elements  of  the  law  applicable  to  lode  locations 
upon  this  presumption,  and,  as  we  progress,  endeavor 
to  show  the  circumstances  under  which,  and  extent  to 
which,  it  may  be  overcome,  reaching  ultimate  conclu- 
sions by  such  gradations  as  the  nature  of  the  subject 
will  permit. 

§  552.  Intralimital  rights  not  affected  by  the  form 
of  surface  location. — We  have  heretofore  suggested 
that  the  ideal  location,  the  one  which  confers  the  great 
est  property  rights  susceptible  of  being  conveyed  under 
the  mining  laws,  contemplates  a  surface  regular  in 
form  along  the  course  of  the  vein,  with  end-lines  cross- 
ing it,  substantially  presenting  the  forai  of  a  parallelo- 
gram.^® A  departure  from  the  ideal,  however,  if  the 
statutory  limit  is  not  exceeded  as  to  area,  does  not  de- 
stroy or  impair  the  intralimital  rights  of  a  locator. 
The  requirement  as  to  nonparallelism  of  end-lines 
affects  only  the  extralimital  or,  strictly  speaking,  the 
extralateral  rights.''  In  such  cases  the  right  to  pur- 
sue the  vein  on  its  downward  course  outside  of  the 
locator's  vertical  bounding  planes  may  not  exist;  but 
in  other  respects  the  locator's  right  to  whatever  may 
be  found  within  such  planes  is  the  same  as  in  the  case 
of  a  location  of  the  highest  type.  It  is  unquestionably 
true  that  neither  the  form  of  the  surface  location  nor 
the  position  of  the  vein  as  to  its  course  controls  or  re- 
stricts the  intralimital  rights. 

According  to  Judge  Ross,'^  this  is  the  logical  deduc- 
tion flowing  from  the  decision  of  the  supreme  court  of 
the  United  States  in  the  Elgin  case.'^ 

16  Ante,  §  360. 

17  Ante,  §  365. 

18  Doe  V.  Waterloo  M.  Co.,  54  Fed.  935,  938. 

19  Iron  S.  M.  Co.  v.  Elgin  M.  etc.  Co.,  118  U.  S.  196,  206,  6  Sup. 
Ct.  Rep.  1177,  30  L.  ed.  98,  5  Morr.  Min.  Rep.  641. 


1223  EXTRATERRITORIAL  PURSUIT.  §  553 

§  553.  Pursuit  of  the  vein  on  its  course  beyond 
bounding  planes  of  the  location  not  permitted. — Sub^ 
ject  to  the  extralateral  right  of  outside  apex  proprie- 
tors, a  locator  may  be  said  to  own  all  those  parts  of 
such  veins  having  their  tops,  or  apices,  within  the 
boundaries  as  are  found  within  such  boundaries. 
Wherever  a  vein  on  its  course,  or  strike,  passes  out  of 
and  beyond  any  one  of  these  boundaries,  the  right  of 
the  locator  to  it  ceases.  Whatever  may  be  his  privi- 
lege with  reference  to  the  pursuit  of  his  vein  in  depth, 
longitudinally  it  cannot  be  followed  beyond  any  of  the 
boundaries.  We  have  fully  explained  the  rights  upon 
located  veins  as  they  were  asserted  under,  and  prior  to, 
the  passage  of  the  act  of  1866.^°  It  having  been  defi- 
nitely settled  by  the  supreme  court  of  the  United  States 
in  the  Flagstaff-Tarbet  case,'^  that  under  the  act  of 
1866  a  locator  could  not  pursue  his  vein  on  its  strike 
beyond  the  lines  of  his  location,  the  application  of  the 
doctrine  of  that  case  to  locations  made  under  the  act 
of  1872  was  natural  and  logical.  The  rule  may  be  said 
to  be  elementary." 

This  being  true,  it  follows  that  no  other  locator  can, 
in  the  pursuit  of  his  vein  on  its  strike,  pass  through  the 
bounding  plane  of  a  senior  location,  with  the  possible 
exception  of  the  owner  of  a  cross-lode."  An  entry 
underneath  the  surface  of  a  prior  location  is  only  per- 
mitted in  the  exercise  of  a  right  to  pursue  a  vein  on  its 

20  Ante,  §  58. 

21  Ante,  §60;  fig.  3,  and  illustrations  with  §  586,  post. 

22  Argentine  M.  Co.  v.  Terrible  M.  Co.,  122  U.  S.  478,  485,  7  Sup.  Ct. 
Eep.  1356,  30  L.  ed.  1140;  Terrible  M.  Co.  v.  Argentine  M.  Co.,  5  McCrary, 
639,  89  Fed.  583;  Wolfley  v.  Lebanon  M.  Co.,  4  Colo.  112,  13  Morr.  Min. 
Rep.  282;  Patterson  v.  Hitchcock,  3  Colo.  533,  5  Morr.  Min.  Rep.  542; 
Hall  V.  Equator  M.  &  S.  Co.,  Fed.  Cas.  No.  5931;  New  Dunderberg  M. 
Co.  V.  Old,  79  Fed.  598.  605.  25  C.  C.  A.  116;  Davis  v.  Shepherd,  31 
Colo.  141,  72  Pac.  57,  58,  22  Morr.  Min.  Rep.  575. 

23  Past,  §  562. 


§557 


CROSS-LODES. 


1224 


dowmvard  course.    This  suggests  the  subject  of  cross- 
lodes. 


Article  II.     Cross-Lodes. 


§  557. 


§  558. 
§  559. 


Section  twenty-three  hun- 
dred and  thirty-six  of 
the  Eevised  Statutes 
and   its  interpretation. 

The  Colorado  rule. 

Cross-lodes  before  the  su- 
preme court  of  Mon- 
tana, 


§  560.  The  Arizona  -  California 
rule. 

§  561.  The  views  of  the  supreme 
court  of  the  United 
States. 

§  562.     General  deductions. 


§  557.  Section  twenty-three  hundred  and  thirty-six 
of  the  Revised  Statutes  and  its  interpretation. — ^As  we 
have  observed  in  a  previous  chapter,"  under  local 
rules  existing  prior  to  the  passage  of  the  act  of  1866, 
as  well  as  under  the  act  itself,  the  lode  was  the  prin- 
cipal thing  granted,  and  the  adjacent  surface,  if  any 
was  actually  appropriated,  was  a  mere  incident;  that 
only  one  lode  could  be  held  by  a  single  location,  and 
that  this  could  be  followed  on  its  course,  or  strike, 
wheresoever  it  might  lead,  to  the  lawfully  claimed 
limit,  without  the  necessity  of  inclosing  it  within  sur- 
face boundaries. 

Where  surface  boundaries  had  been  established  by 
the  prior  locator  for  the  convenient  working  of  his  lode, 
a  subsequent  locator  appropriating  a  separate  vein 
might  pursue  it  into  and  through  the  surface  ground  of 
the  senior  locator,  but  no  one  was  permitted  to  invade 
such  surface  for  the  purpose  of  searching  for  undis- 
covered veins." 

Such  being  the  recognized  rules,  it  is  not  difficult  to 
imagine  instances  of  two  lodes  held  in  different  owner- 


2*  Ante,  §  58. 

25  Atkins  V.  Hendree,  1  Idaho,  95,  2  Morr.  Min.  Rep.  328. 


1225      INTERPRETATION    OF    REVISED    STATUTES    SECTION.       §    557 

ship  intersecting  or  crossing  each  other  on  their  strike, 
or  onward  course,  without  creating  any  conflict  of  title, 
except  at  the  place  of  lode  intersection  or  within  the 
space  of  actual  lode  crossing. 

The  act  of  1866  made  no  provision  in  terms  for  the 
determination  of  rights  growing  out  of  such  crossings 
or  intersections. 

Such  were  the  conditions  existing  when  the  act  of 
1872  was  passed,  which  contained  the  following  pro- 
vision, now  preserved  in  section  twenty-three  hundred 
and  thirty-six  of  the  Revised  Statutes: — 

Where  two  or  more  veins  intersect  or  cross  each 
other,  priority  of  title  shall  govern,  and  such  prior 
location  shall  be  entitled  to  all  ore  or  mineral  con- 
tained within  the  space  of  intersection;  but  the  sub- 
sequent location  shall  have  the  right  of  way  through 
the  space  of  intersection  for  the  purposes  of  the  con- 
venient working  of  the  mine ^* 

This  is  the  enunciation  of  a  rule  of  law,  the  useful- 
ness of  which  when  applied  to  the  conditions  existing 
at  the  time  of  its  passage  cannot  be  denied.  It  estab- 
lished a  rule  of  decision  based  upon  the  equitable 
maxim  that  "priority  in  time  establishes  a  priority  of 
right."  The  application  of  this  provision  to  locations 
made  prior  to  its  enactment  is  not  involved  in  any 
serious  embarrassment.  It  is  only  where  attempts  are 
made  to  apply  the  rule  to  locations  made  and  rights 
asserted  under  the  act  of  1872  that  apparent  difficulties 
have  been  encountered,  giving  rise  to  a  conflict  of 
opinion  and  diversity  of  decision. 

Whatever  may  have  been  the  relationship  existing 
between  the  lode,  which  was  the  subject  of  location, 
and  the  adjacent  surface  ground  under  the  act  of 
1866,  under  the  existing  law  the  right  to  any  portion 

26  Act  of  May  10,  1872,  §  14. 


§  557  CROSS-LODES.  1226 

of  any  lode  is,  as  a  general  rule,  dependent  upon  its 
having  its  top,  or  apex,  within  the  surface  boundaries 
of  the  location.  Of  course,  there  may  be  exceptions  to 
this  rule,  as  heretofore  pointed  out.  A  location  over- 
lying the  dip  of  a  vein  may  hold  everything  within  the 
vertical  boundaries,  in  the  absence  of  an  outside  apex 
proprietor  with  a  location  which  conferred  an  extra- 
lateral  right."  A  regular  valid  location,  once  per- 
fected under  the  law,  vests  in  the  proprietor  the  owner- 
ship of  not  only  the  lode  upon  the  discovery  of  which 
the  location  is  predicated,  but  of  all  other  lodes  the 
tops,  or  apices,  of  which  may  be  found  within  such 
surface  boundaries  or  within  vertical  planes  drawn 
through  them.  The  ownership  of  such  other  lodes  so 
found  is  not  made  to  depend  upon  their  general  direc- 
tion or  the  position  they  may  occupy  with  reference  to 
the  originally  discovered  lode. 

The  only  limitation  upon  the  grant  authorized  by 
section  twenty-three  hundred  and  twenty-two  of  the 
Revised  Statutes  is  the  extralateral  right  reserved  to 
other  locators  to  follow  lodes  having  apices  within 
their  boundaries,  on  their  downward  course,  outside  of 
and  beyond  such  boundaries,  and  underneath  adjoin- 
ing surfaces. 

Instances  may  be  conceived  where  two  veins  might 
intersect  or  cross  on  their  strike  outside  of  vertical 
planes  drawn  through  the  surface  lines  of  the  several 
locations.  In  other  words,  lodes  may  intersect  on 
their  strike  without  the  existence  of  any  surface  con- 
flict or  the  invasion  of  the  territory  included  within 
vertical  planes  drawn  through  surface  boundaries." 

27  Ante,  §  364. 

28  See  concurring  opinion  of  Chief  Justice  Beatty  in  Wilhelm  v.  Sil- 
vester, 101  Cal.  358,  364,  35  Pac.  997,  998. 


1227  THE  COLORADO  RULE.  §  558 

To  cases  of  this  character  the  application  of  the  rule 
"under  consideration  is  accompanied  with  no  more  diffi- 
cult}^ than  its  application  to  cross-lodes  located  under 
or  prior  to  the  act  of  1866. 

But  some  difficulty  has  been  encountered  by  the 
courts  in  different  jurisdictions  in  constniing  section 
twenty-three  hundred  and  twenty-six  of  the  Revised 
Statutes  and  endeavoring  to  harmonize  it  with  other 
sections  of  the  mining  laws,  resulting  in  a  radical  con- 
flict of  opinion.  While  time  and  the  progressive  inter- 
pretation of  the  general  body  of  the  mining  laws  have 
induced  some  of  the  courts  to  recede  from  their  original 
doctrines,  closing  the  breach  to  some  degree,  yet  there 
is  still  a  radical  difference  of  opinion  upon  one  of  the 
most  important  questions  arising  out  of  the  "cross- 
lode"  conditions  which  still  awaits  final  adjustment  by 
the  supreme  court  of  the  United  States. 

In  order  to  ascertain  to  what  extent  the  courts  are  in 
harmony,  and  to  point  out  wherein  there  is  still  a  wide 
divergence  of  views,  it  will  be  necessary  to  state  the 
rule  in  the  different  jurisdictions,  the  reasoning  upon 
which  such  rule  is  predicated,  and  the  extent  to  which 
the  supreme  court  of  the  United  States  has  given  its 
sanction  to  one  view  or  the  other — or  has  declined  to 
pass  upon  either.  We  may  then  state  the  net  results 
in  the  form  of  general  deductions.^" 

§  558.  The  Colorado  rule. — The  inception  of  what 
may  be  termed  the  earlier  Colorado  rule  is  found  in  an 
opinion  given  by  Judge  Hallett,  sitting  as  circuit  judge 
in  the  United  States  circuit  court,  district  of  Colorado, 
upon  a  motion  to  dissolve  an  injunction  in  the  case  of 
Hall  V.  Equator  Mining  and  Smelting  Co.^° 

29  Post,  §  562. 

so  Fed.  Cas.  No.  5931. 


§558 


CROSS-LODES. 


1228 


The  controversy  arose  between  the  Colorado  Central 
lode,  owned  by  the  plaintiff,  and  the  Equator  lode, 
owned  by  the  defendant.  The  Equator  was  located  in 
1866.    The  date  of  the  location  of  the  Central  is  not 


Figure  44. 
disclosed  by  the   reported   decisions;  but  the   court 
records  established  the  fact  that  it  was  discovered 
November  30,  1872. 

Both  parties  claimed  under  United  States  patents 
issued  after  the  passage  of  the  act  of  1872.  Plaintiff 
held  the  senior  patent,  based  on  a  junior  location.  The 
relative  position  of  the  two  claims  is  shown  in  the  dia- 
gram (figure  44),  supra. 

The  controversy  related  to  a  body  of  ore  found  in  or 
under  the  east  end  of  the  Central  location,  and  extend- 
ing thence  westward  to  and  across  the  intersection  with 
the  Equator  location. 

The  motion  to  dissolve  the  injunction  was  heard 
upon  affidavits.  There  was  a  sharp  conflict  as  to  the 
facts.  The  learned  judge,  with  respect  to  the  showing 
made,  uses  this  language: — 


1229  THE  COLORADO  RULE.  §  558 

As  was  anticipated  when  the  bill  was  removed  into 
this  court,  there  is  no  agreement  between  the  parties 
as  to  the  structure  of  the  lode  or  lodes  and  their  out- 
crop. The  affidavits  suggest  several  theories  with- 
out giving  certainty  to  any  of  them.  There  may  be 
two  veins  uniting  in  their  onward  course  at  some 
point  east  of  the  Central  location,,  and  thence  going 
westward  as  one  vein,  with  an  outcrop  in  that  loca- 
tion or  south  of  it.  And  the  vein  may  be  so  wide  at 
the  top  as  to  enter  both  locations  at  the  point  where 
this  controversy  arose.  And  there  may  be  two  veins 
uniting  on  the  strike  or  on  the  dip  at  the  very  place 
in  dispute.  But  as  to  this,  it  is  only  necessary  to  say, 
that  the  facts  are  not  satisfactorily  stated  to  lead  to 

a  just  conclusion It  is  enough  that  there  is  a 

strong  controversy  in  which  the  right  of  neither 
party  clearly  appears.  On  that  alone  we  interfere 
to  preserve  the  property  for  him  who  may  at  law 
prove  his  right  to  it. 

The  motion  to  dissolve  the  injunction  was  denied, 
and  the  parties  were  relegated  to  the  action  of  eject- 
ment, then  pending,  for  a  trial  of  the  questions  of  fact. 
The  court  thereupon  proceeds  as  follows: — 

What  has  been  said  relates  mainly  to  a  question 
of  fact,  which  it  is  the  opinion  of  the  court  should 
be  tried  by  a  jury.  Some  general  remarks  in  addi- 
tion, as  to  the  proper  constniction  of  the  act  of 
congress,  may  assist  the  parties  in  that  investigation. 

And  after  *' assuming  that  these  are  lodes  crossing 
each  other  in  the  manner  indicated  by  the  locations," 
the  judge  enunciates  the  following  doctrine: — 

The  general  language  of  section  twenty-three  hun- 
dred and  twenty-two  seems  to  comprehend  all  lodes 
having  their  tops,  or  apices,  in  the  territory  de- 
scribed in  the  patent,  whether  the  same  lie  trans- 


§  558  CROSS-LODES.  1230 

versely  or  collaterally  to  the  principal  lode  on  which 
the  location  was  made. 

Considered  by  itself,  such  would  be  the  meaning 
and  effect  of  that  section.  But  there  is  another  sec- 
tion relating  to  cross-lodes,  which  is  of  different  im- 
port. It  was  numbered  fourteen  in  the  original  act 
of  1872,  section  twenty-three  hundred  and  thirty-six, 
Revised  Statutes,  second  edition,  and  is  as  follows: 
....  [Then  follows  quotation  of  section  twenty- 
three  hundred  and  thirty-six.]  It  will  be  observed, 
that  by  this  section  the  first  locator  and  patentee  of 
a  lode  gets  only  such  part  of  cross  and  intersecting 
veins  as  lie  within  the  space  of  intersection,  to  the 
exclusion  of  the  remainder  of  such  lodes  and  veins 
lying  within  his  own  territory.  So  far,  this  section 
is  in  conflict  with  section  twenty-three  hundred  and 
twenty-two,  before  mentioned,  and  the  matter  of 
precedence  between  them  is  settled  by  an  arbitrary 
rule  established  long  ago.  As  between  conflicting 
statutes,  the  latest  in  date  will  prevail,  so  between 
conflicting  sections  of  the  same  statute,  the  last  in 
the  order  of  arrangement  will  control.^^ 

The  presumption  that  one  section  of  a  statute  was 
adopted  before  another  seems  to  be  very  slight,  and 
perhaps  this  rule  has  no  other  merit  than  to  afford 
the  means  of  solving  a  difficult  question.  But  the 
rule  appears  to  be  well  established,  and  to  be  appli- 
cable to  the  present  case.  It  gives  to  section  twenty- 
three  hundred  and  thirty-six.  Revised  Statutes,  or 
section  fourteen,  as  it  stood  in  the  original  act,  a  con- 
trolling effect  over  the  prior  section,  and  limits  the 
right  of  the  first  locator  of  a  mine  in  and  to  cross 
and  intersecting  veins  to  the  ore  which  may  be  found 
in  the  space  of  intersection.  If  there  are  in  fact  two 
lodes  crossing  each  other  in  these  locations,  the 
plaintiffs,  having  the  elder  title  by  patent,  have  the 

31  Citing   Bacon's    Abr.    Stat.   D.    Dwarris,    156;    Brown   v.    County 
Commrs.,  21  Pa.  37;  Smith  v.  Moore,  26  111.  392. 


1231  THE  COLORADO  RULE.  §  558 

better  right,  but  it  is  limited  as  last  stated.  So  much 
as  to  the  theory  that  there  are  two  lodes  intersecting 
in  their  onward  course. 

There  can  be  no  question  but  that  Judge  Hallett,  in 
rendering  the  foregoing  decision,  based  only  upon  a 
hypothetical  state  of  facts  and  presented  in  the  form 
of  a  few  "general  remarks,"  exceeded  the  necessities 
of  the  case  under  consideration. 

Upon  the  trial  of  the  case  on  the  merits,  a  state  of 
facts  was  developed  entirely  different  from  the  hypoth- 
esis above  assumed.  Instead  of  two  lodes  intersecting 
each  other  in  the  manner  indicated  by  the  locations, 
there  was  but  one  lode,  with  part  of  its  width  in  one 
location  and  part  in  the  other.^- 

Yet  a  precedent  had  been  established  by  these  ''few 
general  remarks"  which  was  for  many  years  recog- 
nized in  Colorado  as  controlling,  without  even  a  criti- 
cism of  the  logic  of  its  reasoning  or  a  consideration  of 
the  circumstances  under  which  the  decision  was  ren- 
dered. 

In  Branagan  v.  Dulaney,''  the  question  arose  upon 
the  sufficiency  of  the  answer  filed  by  the  defendant,  a 
junior  locator,  justifying  a  trespass  within  the  lines  of 
the  plaintiif,  a  senior  locator,  on  the  ground  that  the 
defendant  was  the  owner  of  a  cross-lode  and  had  a 
right  under  Revised  Statutes,  section  twenty-three  hun- 
dred and  thirty-six,  to  drift  through  the  territory 
covered  by  the  senior  location. 

The  court  below  having  sustained  the  demurrer  to 
the  answer,  judgment  passed  for  plaintiff. 

32  Carpenter's  Mining  Code,  3d  ed.,  p.  65.  See  note  to  11  Fed.  Cas. 
No.  5931. 

S3  8  Colo.  408,  8  Pae.  669,  670. 


§  558  CROSS-LODES.  1232 

On  appeal,  the  supreme  court  reversed  the  judgment, 
basing  its  decision  upon  Hall  v.  Equator  {supra),  and 
the  "arbitrary  rule  of  construction  suggested  by  the 
court"  in  that  case,  and  holding,  in  effect,  that  the 
answer  stated  a  complete  defense. 

This  doctrine  was  followed  or  sanctioned  by  the 
supreme  court  of  Colorado  in  a  number  of  subsequent 
cases." 

The  circuit  court  of  appeals,  eighth  circuit,  in  Os- 
camp  V.  Crystal  River  Mining  Company,'^  gave  its  ap- 
parent sanction  to  the  doctrine  thus  enunciated  by  de- 
clining to  controvert  it,  and  in  a  later  case  invoked  it 
as  an  aid  to  the  interpretation  of  the  tunnel  laws.^" 

It  thus  appears  that  a  "few  general  remarks"  made 
by  a  judge  upon  a  motion  for  a  preliminary  injunc- 
tion, upon  a  hypothetical  state  of  facts  which  was  sub- 
sequently determined  to  have  had  no  potential  exist- 
ence, ripened  into  a  rule  of  property,  which,  when 
applied  to  certain  localities  and  conditions  found  in 
that  state,  was  productive  of  unique  results.  An  illus- 
tration of  the  practical  application  of  the  rule  so  long 
accepted  by  the  supreme  court  of  Colorado  is  shown 
by  an  inspection  of  the  official  map  of  the  mining  region 
of  Cripple  Creek  in  that  state. 

3*  Lee  V.  Stahl,  9  Colo.  208,  11  Pac.  77,  78,  13  Colo.  174,  22  Pac. 
436,  438,  16  Morr.  Min.  Rep.  152;  Morgenson  v.  Middlesex  M.  &  M. 
Co.,  11  Colo.  176,  17  Pac.  513,  514;  Omar  v.  Soper,  11  Colo.  38'0,  7  Am. 
St.  Rep.  246,  18  Pae.  443,  447,  15  Morr.  Min.  Rep.  496;  Coffee  v. 
Emigh,  15  Colo.  184,  25  Pac.  83,  85,  10  L.  R.  A.  125. 

36  58  Fed.  293,  296,  7  C.  C.  A.  233. 

36  Enterprise  M.  Co,  v,  Rico-Aspen  Cons.  M.  Co.,  66  Fed.  200,  210, 
13  C.  C.  A.  390. 


1233 


THE  COLORADO  RULE. 


§558 


In  figure  45  we  reproduce  from  that  map  a  quarter 
section  of  land,  upon  the   surface   of  which  mining 


Figure  45. 
claims  have  been  officially  surveyed,  many  of  which 
have  been  patented,  overlapping  in  the  manner  in- 
dicated." 

37  While  the  rule,  the  practical  operation  of  which  is  intended  to  be 
illustrated  in  figure  45,  has  been  in  some  degree  modified  by  the  cases 
hereafter  referred  to,  yet  the  illustration  is  still  applicable  to  the  modi- 
fied rule,  -which  denies  to  the  junior  cross-locator  the  ownership  of  the 
Lindley  on  M. — 78 


§  558  CROSS-LODES.  1234 

The  rule  thus  enunciated  established  two  princi- 
ples : — 

(1)  The  owner  of  the  junior  cross-lode  was  the  owner 
of  so  much  of  his  cross-vein  as  was  found  within  the 
vertical  boundaries  of  the  senior  location,  except  the 
ore  within  the  space  of  actual  vein  intersection.  The 
ore  within  this  space  belonged  to  the  senior  locator.  In 
other  words,  that  portion  of  the  cross-vein  within  the 
senior  locator's  boundaries  on  each  side  of  this  space 
of  vein  intersection  was  excepted  out  of  the  grant  to 
the  prior  locator; 

(2)  The  owner  of  the  junior  cross-lode  had  a  right 
of  way  through  this  space  of  vein  intersection,  and,  be- 
ing the  owner  of  the  remainder  of  the  cross-vein,  of 
course  could  work  it  within  the  boundaries  of  the 
senior  claim. 

This  rule  remained  practically  undisturbed  in  Colo- 
rado, though  frequently  challenged,  from  the  year 
1879  (the  date  of  Judge  Hallett's  ruling  in  Hall  v. 
Equator,  supra),  until  1898,  when  Judge  Lunt,  district 
judge  of  El  Paso  county,  in  that  state,  in  the  case  of 
Ajax  Gold  Mining  Company  v.  Calhoun  Gold  Mining 
Company,^®  had  the  courage  to  decline  to  follow  the 
long  line  of  decisions  of  the  supreme  court  of  his  state, 
thus  rendering  himself  liable  to  the  charge  of  judicial 
insubordination.  As  to  this  Judge  Lunt  thus  expressed 
himself : — 

cross-vein  within  the  boundaries  of  the  prior  location,  but  permits  him 
to  drift  through  the  senior  claim.  Besides  this,  the  complexities  shown 
in  the  figure  are  certain  to  arise  to  a  greater  or  less  degree  from  the 
practical  application  of  the  rule  permitting  junior  locators  to  place  the 
lines  of  their  claims  upon  or  across  those  of  a  senior  claim,  fully  dis- 
cussed in  previous  sections  (ante,  §§  363,  363a).  The  contrast  between 
the  situation  disclosed  in  figure  45  and  that  flowing  from  a  different  in- 
terpretation of  the  law  in  other  jurisdictions  will  be  observed  by  com- 
paring figure  45  with  figure  50  (post,  ^  560). 
88  Reported  in  full  in  1  Leg.  Adv.,  p.  426. 


1235  THE  COLORADO  RULE.  §  558 

A  very  strenuous  effort  was  made  by  the  counsel 
for  the  plaintiff  to  induce  the  court  to  deny  this  right 
upon  the  ground  that  Hall  v.  Equator  Mining  etc. 
Co.,  11  Fed.  Cas.,  p.  222,  No.  5931,  Morr.  Min.  "Rights, 
282,  3d  ed.,  1879,  Branagan  v.  Dulaney,  8  Colo.  408 
(1885),  8  Pac.  669,  and  the  Colorado  cases  based 
thereon,  were  not,  at  the  time  they  were  rendered, 
carefully  considered,  do  not  express  the  true  and 
just  interpretation  of  the  United  States  act,  and 
should  be  disregarded.  I  am  frank  to  say  that  an 
extensive  attempt  on  my  part  to  obtain  a  consensus 
of  the  opinion  of  the  legal  profession,  especially 
those  who  are  prominent  in  mining  law,  has  con- 
vinced me  that  a  very  general  desire  exists  in  the 
profession  to  have  this  question  again  presented  to 
the  supreme  court,  based  upon  the  belief  that  after 
a  more  careful  consideration  and  examination  of  this 
all-important  question  of  title,  the  supreme  court 
may  reconsider  its  former  opinion  and  fall  in  line 
with  the  apparently  more  just  rule  of  the  courts  of 
California  and  Arizona.  By  reason  of  this  opinion 
of  the  bar,  and  it  must  be  expressly  understood  that 
without  any  intention  whatever  of  presuming  to 
lightly  disregard  and  overrule  a  decision  of  the  su- 
preme court,  I  shall  decide  against  what  is  known 
as  the  "Colorado  rule"  of  cross-veins,  with  the  hope 
and  expectation  that  the  question  will  be  finally  de- 
termined and  the  very  general  feeling  of  doubt  as 
to  the  rule  within  the  profession  set  at  rest.  I  feel 
fortified  in  my  opinion  by  the  language  of  the  chief 
justice  on  page  405,  in  the  case  of  Argonaut  etc,  Co. 
v.  Turner,  23  Colo,  400,^®  where  the  significant  use  of 
the  word  "perhaps"  is  apparent,  and  also  by  the 
opinion  of  Mr.  Morrison,  given  in  his  w^ork  on  cross- 
veins,  and  again  from  the  information  given  me  as 
to  the  consideration  given  to  the  case  of  Branagan 
V.  Dulaney,  and  also  by  the  comments  on  Hall  v. 

a»  58  Am.  St.  Eep.  245,  48  Pac.  685,  686. 


558 


CROSS-LODES. 


1236 


Equator  etc.  Co.  in  first  Lindley,*''  section  558,  and 
the  California  and  Arizona  cases." 

The  facts  of  the  case  which  called  forth  the  opinion 
may  be  illustrated  by  reference  to  a  diagram  (figure 
46)  which  accompanies  the  opinions  of  the  supreme 
court  of  Colorado  and  the  supreme  court  of  the  United 
States,  to  be  hereafter  referred  to. 


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Figure  46. 
The  Ajax  company  owned  the  Monarch,  Mammoth 
Pearl,  and  Ajax  lode  claims,  and  the  Calhoun  company 

40  1st  edition. 

41  1  Legal  Adv.,  p.  432.     See  post,  §  560. 


1237  THE  COLORADO  RULE.  §  558 

owned  the  Ithaca  tunnel-site  and  the  Victor  Consoli- 
dated lode.  All  the  claims  of  the  Ajax  company  were 
prior  to  the  tunnel-site  and  lode  claim  of  the  Calhoun 
company.  The  outcrop  of  the  vein  in  the  Victor  Con- 
solidated, it  was  assumed,  followed  practically  the 
course  of  the  Victor  side-lines  and  passed  through  the 
north  and  south  end-lines  of  the  claim,  necessarily 
crossing  the  Monarch  and  Mammoth  Pearl  claims  of 
the  Ajax  company  and  the  veins  therein.  As  to  these 
two  last-named  claims,  the  Victor  vein  was  therefore 
essentially  a  cross-vein. 

The  questions  considered  by  the  court,  so  far  as  the 
subject  now  under  discussion  is  concerned,  were  as  fol- 
lows:— 

(1)  Whether  or  not  the  Ithaca  tunnel  is  entitled  to  a 
right  of  way  through  the  Mammoth  Pearl  and  Monarch 
claims; 

(2)  Whether  or  not  the  Calhoun  company  has  ac- 
quired by  virtue  of  said  tunnel  and  tunnel-site  location 
the  ownership  of  the  blind  veins  cut  therein, — to  wit, 
veins  or  lodes  not  appearing  on  the  surface  and  not 
known  to  exist  prior  to  the  date  of  location  of  said 
tunnel-site ; 

(3)  Whether  or  not  the  Calhoun  company  is  the 
owner  of  and  entitled  to  the  ore  contained  in  the  vein 
of  its  Victor  Consolidated  claim  within  the  surface 
boundaries  and  across  the  Monarch  and  Mammoth 
Pearl. 

Judge  Lunt  held: — 

(1)  That  the  Calhoun  company  had  no  right  to  drive 
the  Ithaca  tunnel  underneath  the  surface  of  the  Mon- 


§  558  CROSS-LODES.  1238 

arch  and  Mammotli  Pearl  claims,  and  its  further  prose- 
cution must  be  enjoined; 

(2)  The  Calhoun  company  could  not  acquire  by  vir- 
tue of  the  tunnel  and  tunnel-site  location  the  ownership 
of  any  blind  veins  within  the  Monarch  and  Mammoth 
Pearl  locations.  All  such  veins  passed  to  the  owners 
of  these  claims  by  virtue  of  the  priority  of  their  loca- 
tion; 

(3)  As  a  corollary  to  this,  the  Calhoun  company  is 
not  the  owner  of  any  of  the  ore  found  in  the  Victor 
Consolidated  claim  underneath  the  surface  of  the  Mam- 
moth Pearl  and  Monarch  claims,  and  must  pay  the 
value  of  such  ore  extracted  to  the  Ajax  company. 

The  judge  adds  (italics  are  ours) : — 

If  the  defendant  desires  to  follow  its  alleged  Victor 
Consolidated  cross-vein  as  a  cross-vein  to  the  veins 
of  the  Mammoth  Pearl  and  Monarch  claims,  it  will 
not  be  entitled  to  any  ore  within  these  claims  from 
the  point  where  its  cross-vein  enters  the  Mammoth 
Pearl  claim  (on  the  south)  until  it  leaves  the  north 
side-line  of  the  Mammoth  Pearl  and  again  enters 
its  own  territory  of  the  Victor  Consolidated  lode 
claim. 

From  this  we  infer  that  in  Judge  Lunt's  opinion  the 
cross-lode  locator  has  a  right  to  follow  the  vein  through 
the  senior  location, — yielding  the  ore  therein  encoun- 
tered to  the  owner  of  the  latter, — but  he  could  not,  as 
we  have  already  shown,  reach  the  cross-vein  by  means 
of  a  crosscut  tunnel  (such  as  the  Ithaca  tunnel). 

The  supreme  court  of  Colorado  sustained  Judge  Lunt 
in  all  of  these  rulings,  accepting  gracefully  his  apology 
for  reversing  the  former  decisions  of  that  court, *- 

<2  Calhoun  G.  M.  Co.  v.  Ajax  G.  M.  Co.,  27  Colo.  1,  83  Am.  St.  Bep. 
17,  59  Pac.  607,  611,  50  L.  E.  A.  209. 


1239  MONTANA.  .         §  559 


As  to  the  right  of  "vray  to  which  the  junior  cross-lode 
locator  might  be  entitled,  the  court  was  clearly  of  the 
opinion  that  this  was  reserved  to  him,  to  be  exercised 
within  or  on  the  vein,  the  "space  of  intersection"  be- 
ing held  to  mean  the  intersection  of  the  claims  and  not 
vein  intersection. 

The  case  was  taken  to  the  supreme  court  of  the 
United  States  on  writ  of  error,  and  the  decision  of  the 
supreme  court  of  Colorado  was  affirmed,  with  the  ex- 
ception of  that  part  of  it  which  dealt  with  the  right 
of  way  reserved  to  the  junior  cross-lode  locator.  As  to 
this  question  the  court  declined  to  express  an  opinion, 
as  it  was  not  necessarily  involved."  We  will  have 
occasion  to  again  recur  to  this  decision." 

§  559.  Cross-lodes  before  the  supreme  court  of  Mon- 
tana.— The  subject  of  cross-lodes  came  before  the  su- 
preme court  of  Montana  in  the  case  of  Pardee  v.  Mur- 
ray."^ This  case  involved  a  controversy  between  the 
Salmon,  located  in  1866,  and  the  Cliff  Extension,  No.  2, 
located  in  1867,  on  the  one  hand,  and  the  Shark  Town 
and  Scratch  All  lodes,  discovered  and  located  in  1875. 
The  relative  position  of  the  claims  of  the  contending 
parties  is  shown  in  figure  47. 

The  court  thus  expressed  its  views  as  to  the  meaning 
of  the  section  of  the  Revised  Statutes  under  considera- 
tion : — 

If  a  vein  with  a  prior  location  crossed  another, 
such  vein  would  not  disturb  the  possession  of  the 

43  Calhoun  G.  M.  Co.  v.  Ajax  G.  M.  Co.,  182  U.  S.  499,  oOi,  21  Sup. 
Ct.  Eep.  885,  45  L.  ed.  1200. 
*♦  Post,  §  561. 
«  4  Mont.  234,  2  Pac.  16,  18,  15  Morr.  Min.  Rep.  515. 


559 


CROSS-LODES. 


1240 


subsequent  location,  except  as  to  the  extent  of  the 
cross-vein,  and  would  entitle  the  prior  location  to 
the  ore  and  mineral  contained  in  the  space  of  inter- 
section. If  with  a  subsequent  location,  the  locator 
would  be  entitled  only  to  a  right  of  way  to  the  ex- 
tent of  his  cross-vein,  for  the  purpose  of  working 
his  mine,  and  to  no  other  right;  and  if  he  should 
take  the  ore  contained  in  the  space  of  intersection, 
he  would  be  a  trespasser  against  whom  the  prior 
locator  in  possession  of  the  surface  ground  might 
maintain  an  action  of  trespass. 


Figure  47. 
This  suggests  the  view  adopted  by  Mr.  Morrison  in 
his  "Mining  Rights, "'*'' — 

That  a  cross-lode  takes  no  estate  in  the  claim  it 
crosses,  and  has  no  rights  as  against  the  crossed 
claim,  except  the  mere  right  to  drift  through,  leav- 
ing all  the  ore  as  the  property  of  the  crossed  claim. 

46  lOth  ed.,  p.  127,  14th  ed.,  p.  177. 


1241 


THE  ARIZONA-CALIFORNIA  RULE. 


5  560 


tt/IJitxtOTf^ 


This,  as  we  have  seen,  is  the  rule  ultimately  adopted 
by  the  supreme  court  of  Colorado. 

§  560.  The  Arizona-California  rule. — A  case  arose 
in  Arizona  out  of  the  following  facts,  which  are  illus- 
trated by  a  diagram,  which  we 
here  reproduce  as  figure  48. 

The  Black  Eagle  was  the 
prior  location,  based  upon  the 
discovery  of  a  vein  having  a 
southeast  and  northwest 
course.  The  Big  and  Little 
Comet  are  locations  covering 
a  vein  with  a  course  approxi- 
mately north  and  south,  the 
owners  of  which,  through 
means  of  a  tunnel  originating 
in  the  Big  Comet,  had  pene- 
trated underneath  the  Black 
Eagle  surface,  justifying  their 
right  to  do  so  under  section 
twenty-three  hundred  and 
thirty-six  of  the  Eevised  Statutes,  claiming  the  Comet 
vein  to  be  a  cross-vein.  The  surface  conflict  area  is 
shown  on  the  diagram.  The  earlier  Colorado  rule 
was  urged  in  support  of  their  contention. 

The  supreme  court  of  Arizona  declined  to  follow  the 
original  doctrine  of  the  Colorado  courts,  and  in  a  well- 
considered  opinion*^  asserts  that, — 

The  construction  urged  and  supported  by  the 
Equator  and  subsequent  Colorado  decisions  violates 
the  language  of  the  statute,  injects  into  it  things 
not  there,  results  in  conflict  in  the  statute  among  its 
parts,  and  makes  infinitely  more  complex  the  old 
system  of  lode  claims. 


FiGUEE  48. 


47  Watervale  M.  Co.  v.  Leach,  4  Ariz.  34,  33  Pac.  418,  424. 


§  560  CROSS-LODES.  1242 

With  reference  to  cases  arising  under  the  act  of 
1872,  the  rule  announced  in  Arizona  recognizes  the 
controlling  force  of  surface  boundaries,  and  denies  the 
right  to  the  junior  locator  of  a  so-called  cross-lode  to 
invade  the  domain  of  the  senior  claimant  for  any  pur- 
pose.    Says  the  court: — 

Section  twenty-three  hundred  and  twenty-two 
gives,  not  the  lode  alone,  but  all  lodes,  veins,  and 
ledges,  throughout  their  entire  depth,  the  top,  or 
apex,  of  which  lies  inside  of  the  surface  lines  of  the 
claim  extended  downward  vertically;  and  as  lodes 
may  dip,  so  that,  when  followed,  they  may  be  found 
to  extend  beyond  the  boundaries  of  the  claim,  con- 
gress further  provides  that  they  may  nevertheless 
be  followed.  In  other  words,  congress  has  said  to 
the  miners,  ''Comply  with  the  requirements  that  we 
impose,  and  the  government  of  the  United  States  v 
will  grant  absolutely  to  you  a  piece  of  the  earth 
bounded  at  the  surface  by  straight  lines,  distinctly 
marked,  and  by  planes  extending  through  those  lines 
to  the  center  of  the  earth;  and  you  shall  have  all 
lodes  of  mineral-bearing  rock  whose  apex  is  within 
these  boundaries."  This  is  simple,  plain,  and  the 
miners'  rights  are  thereunder  easy  of  ascertainment. 

The  oiDinion  of  the  court  is  elaborate,  and  a  clear 
exposition  of  the  law  from  its  standpoint.  The  court 
fails  to  see  any  conflict  between  the  different  sections 
of  the  law,  and  thus  denies  the  necessity  for  invoking 
the  rule  of  statutory  construction  applied  by  Judge 
Hallett. 

The  position  assumed  in  this  decision  compels  tho 
owners  of  lodes  located  under  the  act  of  1866  to  ad- 
verse the  application  for  patent  filed  by  one  asserting 
rights  to  an  overlapping  surface  location.  The  right 
of  the  first  locator  to  pursue  his  so-called  cross-lode 
into  the  overlapping  claim  is  lost  by  failure  to  adverse. 


1243 


THE  ARIZONA-CALIFORNIA  RULE. 


§560 


This  is  in  hannony  with  the  rule  in  Colorado*^  only 
so  far  as  it  afTected  the  right  to  the  ore  at  the  space 
of  intersection. 

In  California  it  has  been  held  that,  as  to  ledges, 
rights  to  which  accrued  prior  to  the  act  of  May  10, 
1872,  the  act  itself  reserves  them  without  the  necessity 
of  adversing,*^  and  the  supreme  court  of  Utah,  by  a 
divided  court,  coincides  with  the  views  announced  in 
California;^*'  but  as  to  locations  made  subsequent  to 
1866,  the  supreme  court  of 
California  agrees  with  the 
supreme  court  of  Arizona. 

The  question  presented  to 
the  Califoraia  court^^  arose 
out  of  an  attempt  to  locate 
a  so-called  cross-lode  over 
the  surface  of  a  prior  loca- 
tion. The  conflict  between 
the  two  is  illustrated  in 
figure  49,  the  New  Idea  be- 
ing prior  in  point  of  time. 

In  an  elaborate  opinion,  written  before  the  Arizona 
decision  was  published,  the  California  court  reached 
the  same  conclusion  as  that  enunciated  by  the  supreme 
court  of  Arizona. 

Commenting  on  the  Colorado  rule,  the  supreme  court 
of  California  asserts, — 

That  it  would  leave  the  rights  of  prior  locators  in 
the  greatest  confusion;  their  property  interests  in 
their   claims   would   be   undefined,   and   the   result 

48  Lee  V.  Stahl,  13  Colo.  174,  22  Pac.  436,  437.  16  Morr.  Min.  Eep. 
152;  9  Colo.  208,  11  Pac.  77,  78. 

49  Eclipse  G.  &  S.  M.  Co.  v.  Spring,  59  Cal.  304. 

60  Blake  v.  Butte  Silver  M.  Co.,  2  Utah.  54,  9  Morr.  Min.  Eep.  503. 
51  Wilhelm  v.  Silvester,  101  Cal.  358,  35  Pac.  997. 


Figure  49. 


§  560  CROSS-LODES.  1244 

would  be  ruinous  litigation  and  perhaps  personal 
conflicts."' 

Chief  Justice  Beatty,  whose  wide  judicial  experience 
in  mining  litigation  in  Nevada  and  California,  in  both 
trial  and  appellate  courts,  is  a  matter  of  current  his- 
tory, writes  a  concurring  opinion,  embodying  forcible 
reasons  for  the  rule  announced  by  the  court. 

He  says: — 

There  is  no  proposition  in  geometry  plainer  or 
more  easily  demonstrable  than  this:  that  surface 
locations  on  cross-veins  may  be  so  made  as  not  to 
conflict,  while  at  the  same  time  the  portions  of  the 
veins  included  in  or  covered  by  the  respective  loca- 
tions will  intersect  in  depth — in  some  cases  within 
the  surface  lines  of  one  or  the  other  location  ex- 
tended downward  vertically,  and  in  other  cases 
altogether  without  the  surface  lines  of  both  loca- 
tions. This  results  from  the  fact  that  veins  gener- 
ally, if  not  universally,  descend  into  the  earth  not 
vertically,  but  at  a  greater  or  less  inclination  or 
dip."'' 

Chief  Justice  Beatty 's  view  is,  that 'the  law  under 
consideration  was  intended  to  meet  the  conditions  as- 
sumed by  him,  an  underground  crossing  or  intersec- 
tion of  two  veins  on  the  strike  or  dip,  without  any  sur- 
face conflict  between  the  two  locations. 

We  have  endeavored  to  present  the  case  assumed  by 
him  on  figure  49a,  an  isometrical  projection  exhibiting 
two  veins  intersecting  on  their  strike,  or  partly  on  the 
strike  and  partly  on  the  dip,  the  plane  of  intersection 
being  to  some  extent  within  the  extralateral  right  of 
both  claims,  but  without  any  conflict  at  the  surface. 

6i«  Id.,  35  Pac.  999. 

61b  Wilhelm  v.  Silvester,  101  Cal.  358,  36  Pac.  997,  999. 


12^5 


THE  ARIZONA-CALIFORNIA  RULE. 


5  560 


While  the  illustration  is  necessarily  imperfect,  owing 
to  the  difficulty  of  presenting  such  conditions  by  the 
method  of  perspective,  yet  it  serves  to  demonstrate 
the  persuasive  force  of  the  chief  justice's  views.  This 
construction  of  the  law  disposes  of  the  necessity  of 
harmonizing  supposed  conflicts  between  different  sec- 
tions of  the  statute,  giving  operation  and  effect  to  all 
its  provisions. 


Figure  49a. 

The  practical  application  of  the  Arizona-California 
rule  is  shown  in  the  accompanying  figure  50,  which 
represents  a  quarter  section  of  land  covered  by  official 
mining  surveys  in  the  Grass  Valley  region  of  the  latter 
state,  in  which  locality  the  California  case  arose. 


§560 


CROSS-LODES. 


1246 


A  comparison  of  this  figure  witli  the  one  illustrative 
of  the  Colorado  rule,  shown  on  page  1233,  illustrates 

the  radical  differ- 
ence between  the 
two  doctrines. 
The  irregularly 
shaped  surfaces 
shown  in  the  Cali- 
fornia illustration 
are  accounted  for 
by  patenting  a 
number  of  claims 
in  one  group, 
showing  only  the 
exterior  lines  of 
the  composite,  a 
practice  at  one 
FiGUKE  50.  time  followed  by 

the  land  department.  Under  the  existing  rules,  group 
surveys  preserve  the  interior  lines  of  all  individual 
locations  embraced  therein. 

The  Arizona-California  rule  denies  to  the  junior 
cross-lode  locator  the  ownership  of  any  j^art  of  the 
cross-vein  within  the  boundaries  of  the  senior  location. 
The  later  Colorado  decisions  accept  this  as  a  correct 
exposition  of  the  law. 

As  to  any  right  of  way  reserved  to  the  junior  cross- 
lode  locator  through  the  senior  crossed  claim,  there 
was  no  discussion  in  the  California  case,  but  it  is 
quite  manifest  that  the  analysis  by  the  court  of  the 
federal  mining  laws  and  its  expressed  views  therein 
negative  the  idea  that  a  junior  locator  has  any  such 
right  of  way. 

In  the  Arizona  case  this  question  was  necessarily  in- 
volved, as  the  entry  by  the  junior  cross-lode  claimant 


1247         VIEWS  OF  THE  UNITED  STATES  SUPREME  COURT.         §    561 

(the  Little  Comet,  on  figure  48,  ante)  was  by  means  of 
a  tunnel  or  drift  along  the  so-called  cross-vein.  The 
decision  denies  the  right  of  the  junior  cross-lode  lo- 
cator to  enter  within  the  limits  of  the  prior  location. 

§  561.  The  views  of  the  supreme  court  of  the 
United  States. — The  supreme  court  of  the  United 
States,  in  reviewing  the  decision  of  the  supreme  court 
of  Colorado  in  Calhoun  Gold  M.  Co.  v.  Ajax  Gold  M. 
Co.,**^  specifically  considered  each  of  the  questions 
passed  upon  by  both  Colorado  courts,  and  in  affirming 
the  judgment  approved  the  views  announced  in  the 
Arizona-California-Montana  cases  and  the  Colorado 
case  under  review,  to  the  eifect  that  the  senior  locator 
owns  all  veins,  whether  appearing  on  the  surface  or 
blind,  found  within  his  location,  and  a  junior  cross- 
lode  claimant  has  no  right  to  any  ore  found  within 
the  boundaries  of  the  senior  location.  It  also  sus- 
tained the  view  of  the  courts  below,  which  denied  the 
right  of  the  tunnel  locator  to  penetrate  the  bounding 
planes  of  the  senior  location. 

As  to  the  right  of  way  problem,  it  said: — 

Section  2336  imposes  a  servitude  upon  the  senior 
location  but  does  not  otherwise  affect  the  exclusive 
rights  given  the  senior  location.  It  gives  a  riglit  of 
way  to  the  junior  location.  To  what  extent  there 
may  be  some  ambiguity;  whether  only  through  the 
space  of  the  intersection  of  the  veins,  as  held  by  the 
supreme  courts  of  California,  Arizona,  and  Montana, 
or  through  the  space  of  intersection  of  the  claims, 
as  held  by  the  supreme  court  of  Colorado  in  the  case 
at  bar.  It  is  not  necessar^^  to  detennine  between 
these  views.  One  of  them  is  certainly  correct,  and 
therefore  the  contention  of  the  plaintiff  in  error  is 
not  correct,  and,  more  than  that,  it  is  not  necessary 

62  182  U.  S.  499,  505,  21  Sup.  Ct.  Rep.  880,  45  L.  ed.  1200. 


§  562  CROSS-LODES.  1248 

to  decide  on  this  record.  A  complete  interpretation 
of  the  sections  would,  of  course,  determine  between 
these  views,  but  on  that  determination  other  rights 
than  those  submitted  for  judgment  may  be  passed 
upon,  and  we  prefer,  therefore,  to  reserve  our 
opinion. 

The  general  rule  announced  by  that  court  that  the 
grant  by  a  mining  patent  preserves  the  subsurface  of  a 
mining  claim  from  invasion  except  the  right  given  to 
an  outside  apex  proprietor  to  follow  underneath  on 
the  downward  course  of  his  vein"  would  seem  to  nega- 
tive any  right  of  way  through  a  senior  claim  for  any 
purpose. 

§  562.  General  deductions. — We  may  here  recapitu- 
late the  net  result  obtained  from  a  consideration  of 
all  the  adjudicated  cases  on  the  subject  of  cross-lodes. 

All  courts  now  agree  upon  the  following  proposi- 
tions : — 

(1)  The  grant  to  the  senior  locator  is  of  all  veins 
the  apices  of  which  are  found  within  his  location,  re- 
gardless of  their  course,  and  whether  they  were  pre- 
viously known  to  exist  or  were  blind  and  undiscovered. 
There  is  no  limitation  implied,  and  the  grant  is  exclu- 
sive. A  junior  cross-lode  locator  has  no  right  to  any 
ore  found  upon  the  cross-vein  within  the  boundaries  of 
a  senior  claim ; 

(2)  The  owner  of  a  junior  tunnel-site  cannot  by 
means  of  a  crosscut  tunnel  penetrate  within  the  bound- 
aries of  a  senior  claim  for  any  purpose. 

As  to  what  rights  of  way  the  owners  of  junior  lo- 
cated veins  may  have  as  against  senior  claimants 
where  the  veins  intersect  or  cross,  it  may  be  said  that 

53  St.  Louis  M.  &  M.  Co.  v.  Montana  M.  &  M.  Co.,  194  U.  S.  235,  238, 
24  Sup.  Ct.  Rep.  654,  48  L.  ed.  953. 


1249  GENERAL  DEDUCTIONS.  §  562 

all  courts  agree  that  where  two  veins  cross  on  their 
dips,  the  senior  takes  all  the  ore  within  the  space  of 
vein  intersection  and  the  junior  has  a  right  of  way 
through  the  space.  The  same  may  be  said  of  veins 
crossing  on  their  strike  or  course  where  there  is  no 
surface  conflict  between  the  locations,  as  illustrated 
in  figure  49a. 

But  where  there  is  a  surface  conflict,  and  there  are 
cross-lodes  and  cross-locations  such  as  were  con- 
sidered in  the  various  cases  heretofore  illustrated, 
there  is  a  disagreement. 

In  Colorado  and  Montana  the  junior  cross-lode 
claimant  has  a  right  to  drift  through  the  senior  claim, 
following  the  cross-vein,  yielding  the  ore  encountered 
to  the  senior  locator. 

In  California  and  Arizona  he  has  no  such  right. 
We  think  that  the  logical  inferences  which  may  be 
drawn  froiii  the  decisions  of  the  supreme  court  of  the 
United  States  are  in  favor  of  the  California-Arizona 
rule. 

Lindley  on  M. — 79 


CHAPTER  III. 

THE  EXTEALATERAL  RIGHT. 
Akticle  I.    Introductoey. 

II.      EXTKALATERAL      RIGHTS     ON     THE     ORIGINAL     LODE      UNDEB 

Patents  Issued  Prior  to  May  10,  1872. 

III.  Extralateral    Rights    Flowing   from  Locations   Made 

Under  the  Act  of  May  10,  1872,  and  the  Revised 
Statutes. 

IV.  Construction  op  Patents  Applied  for  Peioe,  but  Issued 

Subsequent,  to  the  Act  of  1S72. 
V.    Legal  Obstacles  Interrupting  the  Extralateral  Right. 
yi.    Conveyances  Affecting  Extralateral  Right. 


Aeticle  I.    Introductoey. 


§  564.     Introductory. 

§  565.  Origin  and  use  of  the 
term  "extralateral." 

§  566.  The  "dip  right"  under  lo- 
cal rules. 

§  567.  The  right  to  pursue  the 
vein  in  depth,  prior  to 


patent  under  the  act  of 
July  26,  1866. 
§  568.  Nature  of  estate  in  the 
vein  created  by  grant 
of  the  dip  or  extralat- 
eral right. 


§  564.  Introductory. — The  extralimital  rights  of  a 
lode  locator,  other  than  the  right  to  pursue  the  vein  on 
its  downward  course  out  of  and  bej^ond  his  vertical 
bounding  planes,  are  few  and  comparatively  unimpor- 
tant. The  right  to  locate  and  hold  a  millsite  in  con- 
nection with  a  located  lode  under  the  first  clause  of 
section  twenty-three  hundred  and  thirtj^-seven  of  the 
Revised  Statutes  may  be  said  to  be  extralimital.  It  is 
wholly  dependent  upon  lode  ownership.  A  loss  of  the 
lode  location  by  forfeiture  or  abandonment  would  un- 
doubtedly destroy  the  right  to  the  associated  millsite, 
unless  it  had  thereon  a  quartz-mill  or  reduction  works, 

(1250) 


1251       ORIGIN  AND  USE  OF  THE  TERM  "  EXTRALATERAL. "       §  565 

when  an  entry  might  be  made  thereof  under  the  second 
clause  of  that  section. 

But  the  selection  of  a  millsite  is  an  independent  act.^ 
It  is  a  privilege  which  may  or  may  not  be  exercised. 
The  same  may  be  said  of  the  permission  granted  under 
the  various  laws  of  congress  to  cut  timber  for  mining 
purposes  upon  public  lands,  which  is  a  mere  transitory 
privilege,  not  to  be  classified  distinctively  as  a  right. "^ 

The  principal  right  which  may  be  exercised  beyond 
the  surface  boundaries  of  a  lode  location  is  that  which 
is  now  commonly  designated  by  the  term  "extra- 
lateral." 

In  determining  the  nature  and  extent  of  this  right, 
it  will  be  necessary  to  consider  not  only  the  provisions 
of  the  Revised  Statutes,  but  also  the  act  of  July  26, 
1866.  As  we  have  heretofore  obser\'ed,^  to  a  consider- 
able extent  this  act  and  the  titles  predicated  upon  it  are 
brought  into  connection,  and  are  at  least  partly  blended 
with  the  later,  or  present,  legislative  system  and  the 
titles  held  thereunder. 

§  565.  Origin  and  use  of  the  term  "extralateral. ' ' — 
The  word  ''extralateral"  does  not  appear  in  any  of  the 
standard  dictionaries.  We  are  indebted  to  Dr.  Ray- 
mond for  its  introduction  into  the  mining  literature 
of  the  period.*    Its  etymological    signification  is  ob- 

1  Ante,   §   521. 

2  The  privilege  of  cutting  timber  from  the  public  lands,  both  min- 
eral and  nonmineral,  is  not  confined  to  locators,  or  even  owners,  of 
mining  claims.  Under  regulations  prescribed  by  the  secretary  of  the 
interior  or  the  secretary  of  agriculture  in  the  national  forests,  it  may 
be  enjoyed  by  a  large  class  of  people.  It  is  a  subject  not  so  intimately 
associated  with  the  mining  laws  as  to  warrant  any  extended  treatment 
in  the  text. 

3  Ante,  §  60. 

*  Law  of  the  Apex,  Trans.  Am.  Inst.  M.  E.,  vol.  xii,  p.  387, 


§  566  INTRODUCTORY.  1252 

vious.  Its  application,  to  denote  the  right  to  pursue 
a  vein  on  its  downward  course,  outside  of  and  beyond 
vertical  planes  drawn  through  the  side-lines  of  a  lode 
location,  into  and  underneath  the  surface  of  adjoining 
or  contiguous  land,  affords  us  a  simple  and  compre- 
hensive term  with  which  to  express  a  somewhat  com- 
plex idea.  The  phrase  ''right  of  lateral  pursuit,"  em- 
ployed by  Mr.  Willard  Parker  Butler,'  is  an  equivalent. 
Either  expression,  when  used  in  connection  with  the 
federal  mining  laws,  is  free  from  ambiguity  and  suffi- 
ciently explicit. 

§  566.  The  "dip  right"  under  local  rules.— The 
''dip  right"  of  the  early  miner  was  the  forerunner  of 
the  modem  extralateral  right.  Whether,  in  framing 
their  local  regulations  on  this  subject,  the  pioneers  of 
the  west  drew  their  inspiration  from  the  traditions  of 
early  German  customs,  which  sanctioned  the  inclined 
location,®  received  their  suggestions  from  mining  on 
"rake  veins"  in  Derbyshire,^  or  were  induced  to  pro- 
vide for  following  their  vein  on  its  dip  indefinitely,  on 
the  consideration  that  the  miner  might  obtain  more 
that  was  valuable  by  this  method  than  any  other,  is 
not  at  this  late  day  necessary  to  inquire. 

The  fact  remains  that  ever  since  the  discovery  of  the 
auriferous  quartz  veins  of  California,  the  "dip  right" 
in  some  form  has  been  an  all-important  attribute  of  the 
ownership  of  lodes  and  lode  locations.  The  local  regu- 
lations which  established  and  governed  this  right,  as 
well  as  all  others  during  that  period,  were  not  framed 
with  serious  regard  to  precision  of  expression.  The 
locator  was  entitled  to  so  many  linear  feet  on  the  lode, 

6  School  of  Mines  Quarterly,  July,  1886. 

6  Ante,  §  43. 

7  Ante,  §  8. 


1253  THE  "dip  right"  under  local  rull-s.  §  566 

in  whatever  direction  it  might  be  found  to  run,  "to- 
gether with  all  the  dips,  spurs,  angles,  and  variations 
of  the  vein." 

Sometimes  additions  were  made  to  this  vocabulary. 
For  example,  the  miners  of  Reese  River,  Nevada,  pro- 
vided that, — 

Each  claimant  shall  be  entitled  to  hold  by  location 
two  hundred  feet  on  any  lead  in  the  district,  with  all 
dips,  spurs,  and  angles,  offshoots,  depths,  widths, 
variations,  and  all  mineral  and  other  valuables  there- 
in contained.^ 

These  terms  were  supposed  to  be  comprehensive 
enough  to  take  laterally  and  in  depth  what  the  miner 
failed  to  obtain  longitudinally.  Much  controversy 
arose  in  the  early  days  over  rights  asserted  under 
the  claim  to  ''spurs";  but,  generally  speaking,  the 
extent  and  character  of  the  "dip  right"  were  well 
understood  and  recognized.  The  exercise  of  the  right 
was  not  defined  specifically  by  bounding  planes.  As 
a  rule,  no  surface  lines  were  marked,  and  no  surface 
occupant  ever  thought  of  contesting  the  privilege  of  a 
lode  claimant  of  following  his  vein  underneath  such 
surface.  Such  privilege  was  sanctioned  by  the 
"American  common  law  of  mining  for  the  precious 
metals."* 

Where  surface  boundaries  were  established,  as  they 
sometimes  were,  they  were  not  looked  upon  as  con- 
trolling any  rights  upon  the  located  lode,  either  in 
length  or  depth. ^° 

If  there  were  disputes  as  to  the  common  bounding 
plane    between  two    claimants  on    a  lode,  they    were 

8  J.  Ross  Browne's  Mineral  Resources,  1867,  p.  247. 

»  King  V.  Edwards,  1  Mont.  235,  4  Morr.  Min.  Rep.  480. 

10  Ante,  §  59. 


§  566  INTRODUCTORY.  1254 

■usually  adjusted  by  common  consent,  or  resulted  in 
consolidation  of  interests  and  the  establishment  of  a 
common  system  of  development.  The  law  reports 
covering  this  period  are  barren  of  cases  touching  this 
subject. 

As  to  whether  or  not  end-lines  defining  underground 
rights  on  the  vein  were  inferred,  or  that  these  should 
be  drawn  across  the  lode  at  a  right  angle,  or  at  any 
other  angle,  to  the  course  of  the  lode  at  the  surface,  is  a 
matter  over  which  there  has  been  considerable  contro- 
versy at  the  bar,  and  concerning  which  there  is  some 
difference  of  opinion.  Lodes  did  not  then,  any  more 
than  now,  pursue  a  uniform  course.  The  first  locator 
on  a  continuous  vein  might  comply  with  the  rectan- 
gular suggestion,  but  a  claimant  locating  a  part  of  the 
same  vein  some  distance  removed  from  the  original 
locator,  at  a  point  where  the  vein  had  changed  its 
course,  would  be  compelled  to  accommodate  himself 
to  local  conditions,  leaving  intermediate  locators  with 
end-lines  either  converging  toward  or  diverging  from 
those  established  by  one  or  the  other  of  the  previous 
locators. 

Whatever  may  be  said  of  the  rule  of  implied  end- 
lines  of  locations  made  under  the  act  of  July  26,  1866, 
and  their  direction  with  reference  to  the  course  of  the 
vein,  it  cannot  be  demonstrated  that  any  specifically 
defined  rule  was  embodied  in  the  written  district  regu- 
lations during  the  period  when  local  rules  and  customs 
held  unquestioned  sway. 

The  nature  and  extent  of  the  dip  right,  as  estab- 
lished and  recognized  by  the  local  customs  of  miners 
during  the  period  antedating  legislation  by  congress, 
were  substantially  as  above  indicated. 


1255  PURSUIT  OF  VEIN  IN  DEPTH.  §  567 

§  567.  The  right  to  pursue  the  vein  in  depth,  prior 
to  patent  under  the  act  of  July  26,  1866.— Section  four 
of  the  act  of  July  26,  1866,  contained  the  following  pro- 
vision:— 

No  location  hereafter  made  shall  exceed  two  hun- 
dred feet  in  length  along  the  vein  for  each  locator, 
with  an  additional  claim  for  discover^^  to  the  discov- 
erer of  the  lode,  with  the  right  to  follow  such  vein  to 
any  depth,  with  all  its  dips,  variations,  and  angles, 
together  with  a  reasonable  quantity  of  surface  for 
the  convenient  working  of  the  same,  as  fixed  by 
local  rules 

This  act  was  but  the  crystallization  of  the  miners^ 
rules  and  customs. ^^  It  in  no  respect  enlarged  the 
right  of  the  claimant  beyond  that  which  the  rules  of 
the  mining  district  gave  him.^^  It  restricted  the  lo- 
cator to  one  lode,^^  but  made  no  provision  for  the  es- 
tablishment of  surface  boundaries  as  an  act  of  location: 

We  are  instructed  by  Judge  Field  that,  although  not 
in  terms  mentioning  end-lines,  such  were  necessarily 
implied." 

Where  surface  land  was  appropriated  in  connection 
with  a  linear  location  on  the  ledge,  it  was  intended 
solely  for  the  convenient  working  of  the  mine,  and  did 
not  measure  the  miner's  right,  either  to  the  linear  feet 
upon  its  course  or  to  follow  the  dips,  angles  and  varia- 
tions of  the  vein.^^ 

11  Jennison  v.  Kirk,  98  U.  S.  453,  457,  25  L.  ed.  240,  4  Morr.  Min. 
Rep.  504;  Broder  v.  Natoma  Water  Co.,  101  U.  S.  275,  276,  25  L.  ed. 
790,  5  Morr.  Min.  Rep.  33;  Blake  v.  Butte  S.  M.  Co.,  2  Utah,  54. 

12  Eureka  Case,  4  Saw.  323,  Fed.  Cas.  No.  4548,  9  Morr.  Min.  Rep. 
578. 

13  Id.;  Eclipse  G.  &  S.  M.  Co.  v.  Spring,  59  Cal.  304,  306;  Walrath 
V.  Champion  M.  Co.,  63  Fed.  552,  556. 

14  Eureka  Case,  4  Saw.  323,  Fed.  Cas.  No.  4548,  9  Morr.  Min.  Rep. 
578. 

15  Ante,  §  58. 


§  567  INTRODUCTORY.  1256 

The  line  of  the  location,  tlie  number  of  linear  feet 
claimed  along  the  course  of  the  vein,  measured  his 
right  as  to  length. 

While  the  act  clearly  granted  the  privilege  of  pursu- 
ing the  vein  in  its  downward  course,  there  was  no 
attempt  at  defining  the  bounding  planes  which  limited 
the  right. 

While,  as  heretofore  obser\'ed,  end-lines  may  have 
been  inferred,  for  the  simple  reason  that  the  miner's 
pursuit  of  the  vein  on  its  strike  must  cease  at  some 
point,  the  direction  to  be  given  to  the  lines  and  the 
angle  at  which  they  were  to  be  drawn  with  reference 
to  the  course  of  the  vein  were  not  necessarily  inferred. 
We  have  the  highest  authority  for  the  statement  that 
these  end-lines  were  not  required  to  be  parallel.'® 

Judge  Field  said  in  the  Eureka  case  that  lines  drawn 
vertically  down  through  the  ledge,  or  lode,  at  right 
angles  with  a  line  representing  its  general  course  at  the 
ends  of  the  claimant's  line  of  location,  will  carve  out, 
so  to  speak,  a  section  of  the  ledge,  or  lode,  within  which 
he  is  permitted  to  work,  and  out  of  which  he  cannot 
pass.  If  the  general  course  is  to  be  considered  as  a 
straight  line  connecting  the  linear  extremities  of  the 
location,  indicated  thus, — 

VEIN. 


x:^.. Z^^rc 

by  the  dotted  line,  x-x,  the  application  of  Judge  Field's 

16  Eureka  Case,  4  Saw.  323,  Fed.  Cas.  No.  4548,  9  Morr.  Min.  Rep. 
578;  Iron  S.  M.  Co.  v.  Elgin  M.  Co.,  118  U.  S.  196,  208,  6  Sup.  Ct. 
Eep.  1177,  30  L.  ed.  98,  15  Morr.  Min.  Eep.  641;  Walrath  v.  Champion 
M.  Co.,  63  Fed.  552,  556;  Cons.  Wyoming  M.  Co.  v.  Champion  M.  Co., 
63  Fed.  540,  550,  18  Morr.  Min.  Eep.  113;  Carson  Qty  G.  &  S.  M.  Co. 
V.  North  Star  M.  Co.,  73  Fed.  597,  599;  S.  C,  on  appeal,  83  Fed.  658, 
669,  28  C.  C.  A.  333. 


1257 


PURSUIT  OF   VEIN    IN   DEPTH. 


§567 


rule  would  necessarily  result  in  a  parallelism  of  end- 
lines,  which  he  says  is  not  required.  If  each  end-line 
of  each  location  is  to  be  drawn  at  right  angles  to  the 
local  trend,  as  indicated  at  the  respective  points  where 
the  linear  measurement  on  the  vein  begins  and  ends, 
they  never  could  be  parallel,  except  in  the  case  of  ideal 
veins  pursuing  a  uniform  course. 

A  practical  illustration  of  this  was  exhibited  during 
the  trial  in  the  United  States  circuit  court,  ninth  cir- 
cuit, northern  district  of  California,  of  the  case  of  the 
Carson  City  Gold  and  Silver  Mining  Company  v.  North 
Star  Mining  Company.^^ 

The  North  Star  mine  was  located  prior  to  the  pas- 
sage of  the  act  of  1866.    It  was  a  consolidation  of  a 


-^^J?  ^Ar^'en.  Of/ 


FiGUKE   51. 

number  of  claims  on  the  same  vein,  aggregating  thirty- 
one  hundred  linear  feet. 


"  73  Fed.  597,  601;   S.  C,  on  writ  of  error,  83  Fed.  658,  28  C.  C. 
A.  333. 


§  567  INTRODUCTORY.  1258 

A  casual  inspection  of  this  composite  s"hows  that  the 
extreme  end-lines  are  practically  at  right  angles  to  the 
local  strike  across  which  they  are  drawn,  but  are  not 
parallel  to  each  other.  The  vein  dipping  to  the  north 
made  these  lines  convergent.  Had  it  descended  into 
the  earth  in  an  opposite  direction,  the  end-lines  would 
have  been  divergent.  If  lines  were  drawn  at  right 
angles  to  the  local  course  at  the  extremities  of  each 
series  of  locations  within  the  composite,  a  triangular 
underground  segment,  e.  g.,  between  the  Independence 
and  White  Rock,  would  have  occurred,  owing  to  a 
change  in  the  course  of  the  vein. 

While  we  may  concede,  for  the  purpose  of  argument, 
that  the  theory  of  the  law  of  1866,  which  was  but  the 
expression  in  a  higher  form  of  the  rules  and  customs 
of  the  miners,  was  to  give  to  the  miner  only  so  much  of 
the  vein  underneath  as  he  had  appropriated  upon  the 
surface,  the  act  did  not  define  in  what  manner  the 
bounding  planes  were  to  be  established.  The  method 
suggested  by  Judge  Field,  applied  to  the  ideal  lode, 
would  accomplish  this  result,  the  lines  being  parallel. 
The  same  object  would  be  gained  by  drawing  parallel 
lines  across  the  vein  at  any  angle.  The  truth  is  mani- 
fest. The  act  is  crude  and  imperfect.  Congress  never 
anticipated  the  numerous  intricate  questions  which 
might  possibly  arise  under  it,  and  the  courts  were  com- 
pelled to  exhaust  their  ingenuity  in  construing  it  so  as 
to  prevent  the  destruction  of  the  large  property  in- 
terests which  had  grown  up  under  the  system  of  local 
rules  which  congress  intended  to  perpetuate  through 
the  medium  of  congressional  law. 

What  we  have  thus  far  said  with  regard  to  dip  rights 
under  the  act  of  1866  applies  only  to  unpatented  claims 
located  under  the  act.     The  proceedings  culminating 


1259  NATURE  OF  THE  ESTATE.  8  568 

/  ^ 

/ 

in  a  patent  gave  greater  precision  to  the  location,  and, 
as  a  rule,  definitely  fixed  that  which  theretofore  was 
more  or  less  uncertain. 

There  are  but  few  instances  at  the  present  time  of 
mining  claims  originating  under  this  act  which  have 
been  continuously  perpetuated  without  applying  for  a 
patent. 

Our  object  in  presenting  a  review  of  the  law  was  sim- 
ply to  show  the  historical  evolution  of  the  present 
extralateral  right. 

§  568.  Nature  of  estate  in  the  vein  created  by  grant 
of  the  dip  or  extralateral  right. — Before  proceeding  to 
a  detailed  discussion  of  the  nature  and  extent  of  the 
extralateral  right  as  sanctioned  by  the  legislation  of 
congress,  it  is  of  considerable  importance  that  we 
understand  the  underlying  theory  upon  which  the  right 
is  based.  A  proper  conception  of  this  theory  will,  in 
our  judgment,  materially  aid  us  in  reaching  a  correct 
solution  of  some  of  the  complicated  questions  arising 
out  of  this  element  of  the  federal  law. 

In  discussing  some  of  the  incidents  of  the  ownership 
of  veins,  or  of  land  containing  them,  the  courts  fre- 
quently refer  to  the  common-law  rule  of  property,  and 
in  commenting  upon  that  feature  of  the  American  min- 
ing law  which  awards  under  certain  conditions  the 
right  to  the  pursuit  of  a  vein  outside  of  and  beyond 
vertical  planes  drawn  through  the  surface  boundaries, 
draw  the  conclusion  that  this  so-called  extralateral 
right  is  in  contravention  of  the  common  law.  Strictly 
speaking,  this  is  inaccurate.  The  grant  of  the  right  of 
lateral  pursuit  is,  in  legal  effect,  a  severance  of  the 
estate  in  the  vein  from  the  ownership  of  the  soil  into 
which  it  penetrates  after  passing  on  its  downward 


§  568  INTRODUCTOEY.  1260 

course  beyond  the  vertical  planes  drawn  througli  the 
surface  boundaries  of  the  location  or  patent." 

The  vein  in  its  descent  passing  out  of  and  beyond 
vertical  planes  drawn  through  the  surface  bound- 
aries embracing  the  apex  is  as  much  a  part  of  the 
location  as  if  entirely  within  its  surface  lines.^^ 

A  vein  properly  located  is  part  and  parcel  of  the 
location  within  which  it  is  embraced,  throughout  its 
entire  length,  within  the  limits  defined  by  law,  even 
though  on  its  downward  course  it  enters  an  adjacent 
location.^" 

The  ownership  and  possession  of  the  vein  at  the 
surface  carries  with  it  all  that  pertains  to  the  loca- 
tion.^^ 

Third  parties  having  no  interest  in  an  existing 
valid  location  of  a  mining  claim  can  predicate  no 
claim  or  right  whatever  to  veins  or  lodes,  the  tops, 
or  apexes,  of  which  lie  within  the  lines  of  such  exist- 
ing locations,  either  by  discovery  or  location,  for  the 
all-sufficient  reason  that  such  veins  or  lodes  are 
already,  whether  previously  explored  or  not,  subject 
to  the  claim  of  the  owners  of  the  existing  prior  loca- 
tion." 

It  is  quite  true,  as  aptly  said  by  Mr.  Justice  Brewer 
in  the  Del  Monte  case,  that  were  it  not  for  the  provi- 
sions of  the  federal  statutes  patents  for  land  contain- 

18  Waterloo  M.  Co.  v.  Doe,  82  Fed.  45,  50,  27  C.  C.  A.  50,  19  Morr. 
Min.  Eep.  1. 

19  Tyler  M.  Co.  v.  Last  Chance  M.  Co.,  90  Fed.  15,  21,  32  C.  C.  A.  498. 

20  Davis  V.  Shepherd,  31  Colo.  141,  72  Pac.  57,  58,  22  Morr.  Min. 
Rep.  575.  See,  also,  State  v.  District  Court,  28  Mont.  528,  73  Pac. 
230,  235. 

21  Last  Chance  Min.  Co.  v.  Bunker  Hill  &  Sullivan  M.  &  C,  Co.,  131 
Fed.  579,  583,  66  C.  C.  A.  299;  certiorari  denied,  200  U.  S.  617,  26 
Sup.  Ct.  Eep.  754,  50  L.  ed.  622. 

22  Golden  Link  M.  L.  &  B.  Co.,  29  L.  D.  384. 


1261  NATURE   OF  THE  ESTATE.  §  568 

ing  minerals  would  be  subject  to  the  ordinary  rules  of 
the  common  law.^^ 

But  it  does  not  follow  that  a  grant  of  the  vein  in 
depth  beyond  the  vertical  boundaries  is  a  grant  which 
is  repugnant  to  the  common  law.  Every  mining  loca- 
tion carries  with  it  the  common-law  attributes  of 
ownership.^* 

The  government  being  the  owner  of  the  fee  may 
cai-ve  from  it  the  ownership  of  the  vein.  It  may  grant 
the  surface  to  one  and  the  vein  to  another. 

There  was  nothing  in  the  common  law  which  pro- 
hibited this  severance.  In  fact,  it  was  expressly  sanc- 
tioned, as  we  have  heretofore  shown. 

Nothing  was  more  common  than  to  sell  or  demise  a 
piece  of  land,  excepting  the  mines,  and  when  the  sur- 
face and  underlying  mines  or  the  different  strata  of 
the  subsoil  were  differently  owned,  they  were  separate 
tenements,  with  all  the  incidents  of  separate  owner- 
ship— a  distinct  possession  and  distinct  inheritance." 

Therefore,  when  the  government  grants  a  vein 
throughout  its  entire  depth  within  certain  end-line 
planes,  the  title  to  the  vein  between  these  planes  is 
severed  out  of  the  adjoining  land  into  which  it  pene- 
trates, and  the  estate  in  the  land  overlying  the  dip  is 
to  that  extent  lessened.  Instead  of  being  in  deroga- 
tion of  the  common  law,  this  class  of  grants  is  in  abso- 
lute harmony  with  it.  It  is  not  true,  therefore,  that 
the  statute  should  be  strictly  construed  because  it  con- 
travenes the  common  law. 

23  Del  Monte  M,  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  66,  18  Sup. 
Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370. 

24  St.  Louis  M.  &  M.  Co.  v.  Montana  Co.,  Ltd.,  113  Fed.  900,  902, 
51  C.  C.  A.  530;  S.  C,  on  appeal,  194  U.  S.  235,  24  Sup.  Ct.  Rep.  654, 
48  L.  ed.  953;  Mammoth  M.  Co.  v.  Grand  Central  M.  Co.,  213  U.  S. 
72,  29  Sup.  Ct.  Rep.  413,  53  L.  ed.  702. 

26  Ante,   §  9,  and  authorities  cited  in  notea. 


§  568  INTRODUCTORY.  1262 

The  primary  tliouglit  of  tlie  statute  is  the  disposal 
of  the  mines  and  minerals,  and  in  the  interpretation 
of  the  statute  this  primary  purpose  must  be  recog- 
nized and  given  effect.^® 

Its  construction  should  be  ''fair  and  natural."" 
This  dip  or  extralateral  right  is  not  a  mere  easement. 
The  estate  thus  granted  in  the  vein  is  of  the  same 
dignity  as  that  of  a  title  in  fee.  It  is  a  title  in  fee  as 
to  the  vein  granted.  As  was  said  by  the  supreme  court 
of  Pennsylvania, — 

We  have  for  nearly  half  a  century  judicially  re- 
garded the  ownership  of  mineral  where  it  has  been 
severed  from  the  surface  as  the  ownership  of  land 
to  all  intents  and  purposes.^* 

This  grant  of  the  fee  in  the  vein  may  be  accom- 
panied by  certain  easements.  To  illustrate:  The  right 
to  follow  the  vein  into  adjoining  lands  frequently  can- 
not be  exercised  without  disturbing  some  portion  of 
the  inclosing  rock.^^  The  grant  of  the  vein  neces- 
sarily carries  with  it  whatever  is  reasonably  required 
for  its  enjojTuent  and  without  which  the  grant  would 
be  ineffectual.  But  the  estate  in  the  granted  vein  is  a 
fee  simple  estate. 

The  act  of  1866  was  in  effect  a  proclamation  severing 
veins  and  lodes  of  the  character  specified  from  the 
body  of  the  public  domain.     It  was  the  announcement 

26  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  66, 
18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Eep.  370, 

27  Id. 

28  Lillibridge  v.  Lackawanna  Coal  Co.,  143  Pa.  293,  24  Am.  St.  Rep. 
544,  22  Atl.  1035,  1036,  13  L.  R.  A.  627.     See  post,  §  812. 

29  It  is  not  to  be  inferred  from  this  that  the  owner  of  the  location 
containing  the  apex  is  at  liberty  to  approach  the  outside  parts  of  his 
vein  through  the  land  of  others.  He  must  follow  his  vein  or  reach  it 
through  property  belonging  to  himself.  St.  Louis  M.  &  M.  Co.  v. 
Montana  Ltd.,  113  Fed.  900,  902,  51  C.  C.  A.  530.  See  ante,  §  490a; 
post,  §  615. 


1263 


RIGHT  TO  PATENT  UNDER  ACT  OF  1866. 


§572 


of  a  governmental  policy,  wliereb}'  ledges  within  the 
earth  were  to  be  considered  as  distinct  entities,  and  to 
be  dealt  with  as  such  in  administering  the  public  land 
system. 

This  policy  has  never  been  entirely  changed.  In  the 
main  it  is  as  much  a  part  of  the  existing  system  as  it 
was  of  the  one  which  it  succeeded. 


Article  II.    Extralateral  Rights  on  the  Origi- 
nal Lode  under  Patents  Issued  Prior  to 


May  10, 1872. 

5  572.  The  right  to  patent  under 
the  act  of  1866,  and  its 
restriction  to  one  lode. 

§  573.  The  functions  of  the  dia- 
gram and  the  surface 
lines  described  in  the 
patent  as  controlling 
rights  on  the  patented 
lode. 

§  574.  Eights  of  patentee  under 
the  act  of  1866,  where 
the  end-lines  converge 
in  the  direction  of  the 
dip. 


§  575.  Eights  where  the  end-lines 
diverge  in  the  direction 
of  the  dip. 

§  576.  Under  the  act  of  1866, 
parallelism  of  end-lines 
not  required — Doctrine 
of  the  Eureka  case. 

§  577.  The  Argonaut-Kennedy 
case. 

§  577a.  Application  of  rectangu- 
lar planes  in  cases  of 
converging  end-lines 
under  act  of  1866. 


§  572.  The  right  to  patent  under  the  act  of  1866, 
and  its  restriction  to  one  lode. — The  act  of  July  26, 
1866,  contained  the  following  provision: — 

Whenever  any  person  or  association  of  persons 
claim  a  vein  or  lode  of  quartz,  or  other  rock  in  place, 
bearing  gold,  silver,  cinnabar,  or  copper,  having  pre- 
viously occupied  and  improved  the  same  according 
to  the  local  customs  or  rules  of  miners  in  the  district 
where  the  same  is  situated,  and  having  expended  in 
actual  labor  and  improvements  thereon  an  amount  of 
not  less  than  one  thousand  dollars,  and  in  regard  to 
whose  possession  there  is  no  controversy  or  opposing 


§  572         EXTRALATERAL  RIGHTS  ON  THE  ORIGINAL  LODE.  1264 

claim,  it  shall  and  may  be  lawful  for  said  claimant  or 
association  of  claimants  to  file  in  the  local  land  office 
a  diagram  of  the  same,  so  extended  laterally  or  other- 
wise as  to  conform  to  the  local  laws,  customs,  and 
rules  of  miners,  and  to  enter  such  tract  and  receive 
a  patent  therefor,  granting  such  mine,  together  with 
the  right  to  follow  such  vein,  or  lode,  with  its  dips, 
angles,  and  variations,  to  any  depth,  although  it  may 
enter  the  land  adjoining,  which  land  adjoining  shall 
be  sold  subject  to  this  condition. 

In  another  portion  of  this  work  we  have  commented 
upon  the  construction  given  to  this  section  by  the  land 
department,  and  have  there  illustrated  some  of  the  re- 
sults flowing  from  the  earlier  attempts  to  administer 
the  law.'° 

While  the  method  of  location  sanctioned  by  this  act 
has  long  since  passed  into  history,  and  we  are  not 
necessarily  called  upon  to  speculate  upon  the  subject 
of  dip  rights  as  applied  to  individual  claims  prior  to 
patent  beyond  the  historical  summary  outlined  in  a 
preceding  section,  there  is  left  us  a  legacy  of  numerous 
patents  issued  under  the  provisions  of  the  repealed 
law,  which,  to  some  extent  at  least,  demands  serious 
attention.  We  shall  always  have  these  patents  with 
us.  While  for  many  years  they  have  existed  unob- 
trusively, in  recent  times,  particularly  in  the  older 
quartz  camps  of  California,  a  revival  of  the  mining 
industry  has  brought  them  to  light,  and  the  attention 
of  the  courts  is  directed  to  the  adjustment  of  contro- 
versies arising  out  of  rights  asserted  under  them. 
They  are  entitled  to  more  than  a  passing  consideration. 
It  is  not  to  be  expected  that  we  should  anticipate  every 
possible  question  that  may  arise  out  of  the  peculiar 
form  of  some  of  these  early  patents.     Our  purpose  is 

80  Ante,  §  59,  figs.  1  and  2. 


12G5  CONTROLLED    BY    DUGRAM    AND    PATENT.  §  573 

to  establish,  if  possible,  the  general  rules  of  construc- 
tion, to  be  applied  to  them  as  affecting  the  dip  or  extra- 
lateral  right,  but  not  to  suggest  grounds  of  attack  or 
defense  in  individual  cases,  unless  the  points  involved 
have  heretofore  forced  themselves  upon  the  notice  of 
the  courts. 

We  are  to  construe  these  patents  at  present  solely  in 
the  light  of  the  act  under  which  they  were  issued,  with- 
out regard  to  any  supplemental  or  additional  riglits 
conferred  upon  their  owners  by  virtue  of  the  act  of 
May  10,  1872.  They  granted  but  one  lode,^'  which  we 
call  the  original,  to  distinguish  it  from  other  lodes 
which  might  be  ultimately  discovered  within  the  sur- 
face limits.  These  patents  unifonnly  contained  the 
following  restrictive  clause: — 

The  grant  hereby  made  is  restricted  to  one  vein, 

or  lode,  with  the  surface  ground;  to  wit,  the 

ledge,  upon  which  the  required  improvements  are 
found;  and  that  any  other  vein,  or  lode,  should  such 
be  discovered  within  the  above  described  lot  of  land, 
shall  be,  and  hereby  is,  expressly  excepted  and  ex- 
cluded from  these  presents.^^ 

§  573.  The  function  of  the  dia^am  and  the  surface 
lines  described  in  the  patent  as  controlling  rights  on 
the  patented  lode. — It  is  unnecessary  to  elaborate  what 

31  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co,,  171  U.  S.  55,  64, 
18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370;  Walrath 
V.  Champion  M.  Co.,  171  U.  S.  293,  305,  18  Sup.  Ct.  Rep.  909,  43 
L.  ed.  170. 

82  Although  the  patent  was  confined  to  the  one  lode,  from  which 
It  might  be  inferred  that  all  other  lodes  discovered  within  the  patented 
area  remained  the  property  of  the  United  States,  yet  the  surface  could 
not  be  invaded  by  third  parties  for  the  purpose  of  prospecting  for 
other  veins.  The  existence  of  such  other  veins  was  required  to  be 
known  before  an  entry  could  be  made  for  the  purpose  of  locating  it  in 
hostility  to  the  patentee.  Atkins  v.  Hendree,  1  Idaho,  107,  2  Morr, 
Min.  Rep.  328. 

Lindley  on  M. — 80 


§  573         EXTRALATERAL  RIGHTS  ON  THE  ORIGINAL  LODE.  1266 

we  have  heretofore  noted  in  the  historical  portion  of 
this  work  with  reference  to  the  effect  of  a  patent  issued 
under  the  act  of  1866,  upon  the  right  to  pursue  the  vein 
on  its  course.^^  We  are  now  dealing  with  the  pursuit 
of  the  vein  in  depth.  The  diagram  required  to  be  filed 
defined  with  certainty  the  linear  extent  of  the  miner's 
claim  upon  the  lode.  It  also  gave  precision  to  the  ex- 
tent of  surface  which  he  was  permitted  to  take  in  con- 
nection with  the  lode,  under  the  local  rules  in  force  in 
the  district.  Where  these  rules  fixed  a  uniform  width 
of  so  many  feet  on  each  side  of  the  vein,  the  diagram 
as  prepared,  and  the  patent  as  subsequently  issued, 
presented  upon  the  surface  a  symmetrical  figure  in  the 
form  of  a  parallelogram.  In  many  districts,  however, 
no  definite  area  was  fixed.  In  such  cases,  the  claimant 
was  authorized  to  select,  adjoining  his  lode  or  some 
portion  of  it,  such  a  quantity  of  surface  as  was  rea- 
sonably necessary  for  his  use  in  connection  with  the 
proper  working  of  his  vein.  This  was  construed  to 
mean  ground  for  dumpage  purposes,  the  erection  of 
mills,  the  deposit  of  tailings,  and  other  purposes  con- 
nected with  the  conduct  of  mining  operations,  and 
resulted  in  passing  to  patent  surface  areas  of  all 
conceivable  forms. ^*  The  boundaries  were  frequently 
fixed  without  regard  to  the  course  of  the  vein,  nor 
was  it  originally  contemplated  that  in  fixing  them 
they  should  control  the  miner's  rights  upon  his  dis- 
covered vein.^^  This  came  to  him  as  a  revelation 
after  patents  were  issued  and  the  courts  commenced 
to  construe  them.     Frequently,  during  the  pendency 

33  Ante,  §  59. 

3*  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  64, 
18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370. 

35  Eureka  Cons.  M.  Co.  v.  Richmond  M.  Co.,  4  Saw.  302,  Fed.  Cas, 
No.  4548,  9  Morr.  Min.  Rep.  578. 


1267  (X)NTROLLED   BY    DLVGRAM    AND    PATENT.  §  573 

of  patent  proceedings,  adverse  claims  interv^ened,  caus- 
ing diminution  of  the  area  as  shown  upon  the  posted 
diagram,  producing  irregularity  of  form  where,  as 
originally  applied  for,  it  was  regular.  In  many  in- 
stances no  regard  was  paid  to  the  direction  given  to 
the  lines  which  we  call  end-lines,  marking  the  linear 
limits  on  the  located  lode.  There  was  nothing  in  the 
letter  of  the  law  requiring  the  locator  to  treat  this  as 
an  essential  requirement. 

These  circumstances  produced  four  classes  of 
patents: — 

First — Those  which  defined  a  small  surface  area 
upon  which  the  improvements  were  situated,  the  length 
of  the  lode  claimed  being  represented  by  a  line  pro- 
duced as  shown  in  the  case  of  the  Idaho  mine,  in 
figure  1  (on  page  98) ; 

Second — Those  whose  end-lines  were  substantially 
parallel,  crossing  the  lode,  as  shown  in  the  case  of  the 
Providence  mine,  a  diagram  of  which  is  shown  in  a 
succeeding  section;^® 

Third — Those  whose  end-lines  crossed  the  lode,  but 
converged  in  the  direction  of  the  dip; 

Fourth — Those  wherein  such  lines  crossed  the  lode, 
but  diverged  in  the  direction  of  the  dip. 

Those  of  the  first  class  are  few  in  number.  We  are 
not  aware  that  they  have  been  involved  in  any  contro- 
versy beyond  that  suggested  in  the  Idaho-Maryland 
case  in  a  preceding  section.^^  They  are  relatively  un- 
important. 

Patents  of  the  second  class  conform  to  the  ideal 
standard,  and  present  no  possible  ground  for  discus- 
sion. 

30  Post,  §  593,  fig.  81. 
37  Ante,  §  59. 


§  574         EXTRALATERAL  RIGHTS  ON  THE  ORIGINAL  LODE.  1268 

The  third  and  fourth  classes,  particularly  the  latter, 
require  serious  consideration. 

§  574.    Rights  of  patentee  under  the  act  of  1866, 
where  the  end-lines  converge  in  the  direction  of  the  dip. 

"While  the  later  development  of  the  law  on  the  sub- 
ject of  extralateral  rights  under  the  act  of  1866  as  an- 
nounced by  the  courts  may  justify  awarding  an 
extralateral  right  in  all  cases,  whether  the  so-called 
end-lines  converge  or  diverge,  by  the  application  of 
planes  at  the  terminal  points  of  the  vein  within  the 
location,  at  right  angles  to  the  vein,  a  subject  to  be 
hereafter  discussed,^^  it  requires  no  argument  to  de- 
teimine  the  minimum  extent  of  the  extralateral  right 
to  which  the  locator  is  entitled,  in  the  case  of  conver- 
gence. In  all  the  adjudicated  cases  involving  this  ques- 
tion it  was  assumed  by  both  parties  to  the  litigation 
that  the  lines  crossed  by  the  lode  at  the  extremities 
of  the  locations  performed  the  full  function  of  end- 
lines,  defining  both  surface  rights  and  underground 
rights  on  the  vein.  The  attitude  of  the  courts  in  deal- 
ing with  cases  involving  diverging  end-lines  and  the 
reasons  assigned  for  awarding  an  extralateral  right 
by  rectangular  planes  may,  when  the  question  is  di- 
rectly raised  and  insisted  upon,  be  applied  to  cases  of 
converging  end-lines.  We  will  recur  to  this  subject 
after  we  shall  have  discussed  cases  involving  divergent 
lines.  Our  attention  has  not  been  called  to  the  pre- 
cise case  where  a  patent  describing  a  claim  with  con- 
verging lines  was  issued  prior  to  the  passage  of  the 
act  of  May  10,  1872,  but  there  are  several  instances 
where  patents  were  issued  upon  proceedings  instituted 
while  the  act  of  July  26,  1866,  was  still  in  force.  The 
patent  issued  to  the  Wyoming  mine,  in  Nevada  county^ 

88  Post,  §  577a. 


1269 


CONn-ERGING   EXD-LIXES. 


/ 


California,  which  was  involved  in  the  case  of  Consoli- 
dated "Wyoming  Mining  Co.  v.  Champion  Mining  Co.,'^ 
was  of  this  class.  While  the  problem  is  so  simple  that 
illustration  is  almost  superfluous,  we  present,  in  figure 
52,  a  diagram  showing  the  surface  boundaries  of  the 
Wyoming  mine  and  the 
course  of  the  lode,  which 

crossed  the  two  lines  a-x  '        ^.^ 

and  f-g,  which  lines  inter- 
sected the  terminal  points 
of  the  vein  within  the  loca- 
tion. 

Vertical  planes  drawn 
through  these  lines,  pro- 
duced in  the  direction  of 
the  dip,  indicated  by  the 
arrow,  gave  to  the  patentee 
the  segment  of  the  vein  in- 
dicated in  horizontal  pro- 
jection on  the  diagram  by 
the  triangle  a-h-g. 

It  was  practically  conceded  by  the  litigating  parties 
in  this  case,  that  whatever  rights  the'  Wyoming  com- 
pany might  have  had  prior  to  its  application  for 
patent,  when  it  had  its  claim  surveyed  by  the  United 
States  surveyor,  and  pennitted  him  to  give  the  ter- 
minal-lines the  direction  indicated,  it  was  estopped 
under  its  patent  from  any  further  claim  outside  of 
the  lines  which  were  fixed  by  the  surveyor;  that  as 
Tertical  planes  drawn  downward  through  these  lines, 
produced  in  their  own  direction,  intersected  along  a 
perpendicular  line  represented  by  the  point  h,  the 
extralateral  right  ceased  at  this  line  of  intersection. 


Figure  52. 


as  63  Fed.  540,  18  Morr.  Min.  Eep.  113. 


§  574         EXTBALATERAL  RIGHTS  ON  THE  ORIGINAL  LODE.  1270 

This  concession  gave  to  these  lines  the  full  function  of 
end-lines  under  the  act  of  1872.  The  rectangular 
theory  of  bounding  planes  under  the  act  of  1866  was 
not  raised,  discussed  or  considered  by  the  court. 

The  only  other  instances  wherein  locations  or  patents 
with  converging  end-lines  have  thus  far,  to  our  knowl- 
edge, engaged  the  attention  of  the  courts  are  similar 
cases,  where  the  rights  originated  under  the  act  of 
1866,  the  application  for  patent  having  been  pending 
at  the  date  of  the  passage  of  the  act  of  1872,  under 
which  last-named  act  patents  were  issued.  These 
may  be  noted. 

On  figure  25,  section  318,  page  721,  is  represented 
the  patented  surface  area  of  the  North  Star  mine  with 
converging  end-lines.  In  this  case  it  was  earnestly 
urged  that  as  the  patent  was  issued  under  the  act  of 
1872,  which  provided  that  the  end-lines  should  be 
parallel,  the  North  Star  was  not  entitled  to  follow  its 
vein  on  the  downward  course  out  of  and  beyond  the 
vertical  boundaries. 

Judge  James  H.  Beatty,  commenting  on  this  diver- 
gence, said: — 

That  the  end-lines  are 'not  parallel  cannot  be  the 
basis  of  an  objection,  because  their  convergence, 
when  extended  in  the  direction  of  the  dip  of  the  vein, 
would  give  defendant  less,  instead  of  more,  than  the 
law  provides  for." 

This  decision  was  affirmed  by  the  circuit  court  of 
appeals.*^ 

40  Carson  City  G.  &  S.  M.  Co.  v.  North  Star  M.  Co.,  73  Fed.  597,  602. 

*i  Carson  City  G.  &  S.  M.  Co.  v.  North  Star  M.  Co.,  83  Fed.  658, 
669,  28  C.  C.  A.  333,  19  Morr.  Min.  Rep.  118;  certiorari  was  denied 
by  the  supreme  court  of  the  United  States,  171  U.  S.  687,  18  Sup.  Ct. 
Eep.  940. 


1271  CONVERGING   END-LINES.  §  574 

The  supreme  court  of  California,  while  approving 
arguendo  the  ultimate  conclusion  reached  by  Judge 
Beatty,  did  not  wholly  concur  in  the  reasoning/' 

It  was  also  held  in  the  North  Star  case,  in  the  trial 
as  well  as  the  appellate  court  affirming  the  judgment, 
that  the  act  of  1866,  under  the  provisions  of  which 
the  patent  was  applied  for,  and  under  which  the  loca- 
tions were  made,  did  not  require  parallelism  of  end- 
lines." 

The  case  of  Central  Eureka  M.  Co.  v.  East  Central 
Eureka  M.  Co.  is  practically  parallel  to  the  North  Star 
case.  It  involved,  among  other  questions,  the  right 
of  the  Central  Eureka  company,  claiming  under  a 
patent  issued  after  the  passage  of  the  act  of  1872, 
based  upon  locations  made  under  the  act  of  1866,  the 
end-lines  of  which  converge  in  the  direction  of  the  dip, 
to  follow  its  vein  underneath  a  junior  patented  agricul- 
tural tract — the  Toman  ranch.  The  facts  of  the  case 
are  illustrated  on  the  accompanying  diagram  (figure 
53).  The  trial  court  upheld  the  asserted  right.  The 
decision  was  affirmed  by  the  supreme  court  of  Cali- 
foimia  **  and  by  the  supreme  court  of  the  United 
States."'' 

We  think  it  can  be  plausibly  asserted  that  the  object 
and  intent  of  the  act  of  1872,  in  so  far  as  it  required 
parallelism  of  end-lines  as  a  condition  precedent  to  the 
exercise  of  the  extralateral  right,  and  as  applied  to 
locations  made  subsequent  to  its  passage,  was  to  pre- 
vent the  locator  in  following  his  vein  downward  from 

42  Argonaut  M.  Co.  v.  Kennedy  M.  Co.,  131  Cal.  15,  29,  82  Am.  St. 
Rep.  317,  63  Pac.  148,  153,  21  Morr.  Min.  Rep.  163. 

43  Carson  City  G.  &  S.  M.  Co.  v.  North  Star  M.  Co.,  83  Fed.  658, 
669,  28  C.  C.  A.  333,  19  Morr.  Min.  Rep.  118. 

44  146  Cal.  147,  79  Pac.  834,  9  L.  R.  A.,  N.  S.,  940. 

45  204  U.  S.  266,  27  Sup.  Ct.  Rep.  258,  51  L.  ed.  476. 


§  574         EXTRALATER.VL  RIGHTS  ON  THE  ORIGINAL  LODE.  1272 


acquiring  a  greater  length  underneath  the  surface  than 
he  had  at  the  surface.**^  If  this  may  be  said  of  the  act 
of  1872,  certainly  no  less  can  be  said  of  the  prior  act 
which  made  no  provision  that  the  end-lines  should  be 
parallel. 

Neither  a  location  nor  a  patent  with  converging  end- 
lines  falls  within  the  reason  of  the  rule.  There  can  be 
little  doubt  that  extralateral  rights  may  be  enjoyed 
under  locations  made  or  patents  issued  under  either 
act  where  the  end-lines  converge  in  the  direction  of 


^^g:fV>" 


Figure  53. 


46  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  85, 
18  Sup.  Ct.  Rep.  598,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370;  Doe  v. 
Sanger,   83   Cal.   203,  213,  23   Pac.   365. 


1273  DIVERGING  EXD-LI>rES.  §  575 

the  dip  of  tliG  vein,  giving  the  locator  or  patentee  less 
in  length  on  the  vein  beneath  the  surface  outside  of  his 
vertical  boundaries  than  he  has  at  the  surface.  When 
the  reason  of  the  rule  ceases,  so  should  the  rule  itself. 
It  is  unnecessar}^  to  here  discuss  the  force  and  effect 
of  a  patent  issued  upon  proceedings  commenced  and 
undetermined  at  the  time  the  act  of  1872  was  passed. 
We  shall  have  occasion  to  consider  this  subject  in  a 
subsequent  section,*^ 

§  575.  Rights  of  patentee  under  the  act  of  1866 
where  the  end-lines  diverge  in  the  direction  of  the  dip. 
The  reports  do  not,  so  far  as  we  have  been  able  to 
discover,  present  any  adjudicated  case  where  a  patent 
had  been  issued  under  the  act  of  1866,  defining  a  sur- 
face location  with  end-lines  diverging  in  the  direction 
of  the  dip  of  the  patented  vein.  The  only  cases  which 
afford  any  light  upon  the  subject,  and  which  may  be 
used  as  a  basis  of  discussion,  involved  in  a  greater  or 
less  degree  the  application  of  the  act  of  1872,  as  the 
patents  were  issued  subsequent  to  the  passage  of  that 
act,  upon  either  entries  or  locations  made  under  the 
earlier  act. 

It  is  manifest  that  under  any  location  or  patent  pur- 
porting to  grant  a  claim  with  end-lines  diverging  in 
the  direction  of  the  dip,  such  grant,  if  valid,  will  con- 
vey to  the  patentee  more  of  the  vein  in  length  beyond 
the  side-lines  than  the  locator  has  within  the  surface 
boundaries.  It  is  conceded  that  such  a  grant,  where 
the  divergence  is  substantial,  would,  as  to  locations 
made  under  the  act  of  1872,  be  limited  in  its  opera- 
tion to  the  vertical  boundaries  of  the  claim.  Our  pur- 
pose is  to  ascertain,  if  possible,  what  rule  should  be 
applied    to    patents   issued   upon   claims    originating 

*^  Post,  §  604. 


§  575         EXTRALATERAL  RIGHTS  ON  THE  ORIGINAL  LODE.  1274 

under  the  prior  law,  which  was  entirely  silent  upon 
the  subject  of  both  end-lines  and  side-lines,  the  form 
of  the  surface  having  been  a  matter  under  the  exclu- 
sive control  of  the  local  districts. 

As  the  courts  cannot  convey  to  a  patentee  more  than 
his  patent  lawfully  covers,  they  cannot  deprive  him  of 
anything  legally  embraced  within  it.  The  sole  ques- 
tion involved  is,  What  passes  by  such  a  patent?  We 
are  not  particularly  concerned  with  the  phraseology 
of  that  instrument.  The  land  department  is  but  an 
agent  of  the  government,  and  its  powers  can  only  be 
exercised  within  the  limits  fixed  by  the  act.  The 
patent  cannot  be  broader  than  the  law. 

It  may  be  assumed  that  the  instrument  of  convey- 
ance describes  the  surface  boundaries,  and  grants  the 
tract  thus  described,  together  with  the  vein  or  lode 
to  the  distance  expressed  in  linear  feet,  which  may  be 
assumed  to  represent  the  length  at  the  surface  between 
the  two  terminal-lines,  and  throughout  its  entire  depth 
between  the  terminal-line  planes  extended  in  their  own 
direction. 

There  are  three  possible  solutions  of  the  problem: — 

(1)  The  patentee  is  entitled  to  so  much  of  the  vein 
throughout  its  entire  depth  as  is  found  within  vertical 
planes  drawn  through  the  end-lines  extended  in  their 
own  direction,  regardless  of  the  fact  of  their  divergence 
in  the  direction  of  the  dip;  or 

(2)  As,  by  the  direction  given  to  the  terminal-lines, 
the  claimant  has  asserted  a  right  to  more  linear  feet 
of  the  vein  in  depth  than  he  has  included  within  the 
surface  boundaries,  therefore  he  shall  have  none  of  the 
vein  beyond  the  vertical  planes  drawn  through  the 
surface   boundaries;   in   other  words,   the   patentee's 


1275  DIVERGIXG  EXD-LIXES.  §  575 

rights  are  exclusively  intra] imital,  as  in  the  case  of 
irregular  locations  under  the  act  of  1872;"^  or 

(3)  As  the  tlieory  of  the  act  was  that  the  patentee 
should  have  only  the  number  of  linear  feet  claimed  and 
patented  throughout  its  entire  depth,  the  grant  is 
effectual  for  all  that  part  of  the  vein  found  between  the 
extended  vertical  terminal-line  planes  which  also  lies 
between  vertical  planes  established  at  the  two  extremi- 
ties of  the  linear  distance  on  the  vein  measured  at  the 
surface  at  right  angles  to  the  general  course  of  the  vein 
at  the  surface  within  the  location. 

The  task  of  the  courts  in  the  solution  of  this  problem 
is  undoubtedly  surrounded  by  many  embarrassments, 
arising  out  of  the  meagerness  of  the  statute  itself,  and 
the  difiSculty  of  ascertaining  what,  if  any,  was  the  rule 
and  guide  of  the  miner  as  established  by  custom. 
These  district  customs  were  by  no  means  entirely  uni- 
form in  all  the  districts  upon  any  particular  question, 
and  we  fail  to  find  in  any  of  the  regulations  or  cus- 
tomary laws  anything  which  specifically  defines  the 
underground  rights  as  between  coterminous  mining 
proprietors  on  the  same  vein.  The  courts  have  been 
compelled,  so  far  as  they  have  thus  far  attempted  to 
solve  the  question,  to  read  between  the  lines  of  the 
statute  and  ascertain  the  intent  as  a  matter  of  implica- 
tion, and  in  doing  this  to  determine,  if  possible,  what 
was  the  spirit  and  intent  of  the  local  customs. 

To  arrive  at  the  net  judicial  result  thus  far  reached, 
it  is  essential  to  consider  what  principles  cognate  to 
the  question  under  consideration  have  been  practically 
settled  and  how  far  an  application  of  these  principles 
may  aid  in  the  solution  of  the  problem. 

However  plausible  may  be  the  reasoning  in  support 
of  one  or  the  other  of  the  suggested  methods,  no  solu- 

48  Ante,  §  552. 


§  576         RXTRALATERAL  RIGHTS  ON  THE  ORIGINAL  LODE.  1276 

tion  will  be  accepted  that  is  not  in  consonance  with 
principles  which  have  received  the  highest  judicial 
sanction  or  that  does  violence  to  the  settled  rules  of 
interpretation. 

§  576.  Under  the  act  of  1866,  parallelism  of  end- 
lines  not  required — Doctrine  of  the  Eureka  case. — 
There  is  probably  no  single  case  found  in  the  books 
which  is  more  familiar  to  the  mining  practitioner  than 
the  one  generally  known  as  the  "Eureka  case,""  tried 
before  Justice  Field  and  Judges  Sawyer  and  Hillyer, 
three  of  the  most  eminent  mining  judges  of  the  west. 
The  opinion  written  by  Justice  Field  has  always  been 
regarded  as  a  judicial  classic.  Therein  was  an- 
nounced the  first  judicial  definition  of  the  words 
''lode"  and  "vein,"  subsequently  adopted  by  the  su- 
preme court  of  the  United  States,  and  reannounced  by 
the  courts  of  last  resort  in  all  the  mining  states  and 
territories.  We  are  presently  concerned  with  so  much 
of  the  opinion  only  as  affects  the  subject  of  the  dip 
or  extralateral  right  as  applied  to  mining  claims  ac- 
quired under  the  act  of  July  26,  1866, 

The  facts  and  issues  in  controversy  may  be  illus- 
trated by  a  diagram  (figure  54)  accompanying  the 
opinion,  to  which  has  been  added  some  details  obtained 
from  the  maps  used  at  the  trial. 

For  illustrative  purposes,  we  have  produced  the  east- 
erly end-lines  of  the  At  Last  and  Margaret  claims  in 
the  direction  of  the  dip,  as  indicated  by  the  dotted  line 
z-z'. 

A  cross-section  showing  the  structural  conditions  of 
this  lode  is  shown  in  figure  9  (page  651).  The  vein, 
or  zone,  was  very  wide  in  some  places.     The  surface 

*9  4  Saw.  302,  Fed.  Cas.  No.  4548,  9  Morr,  Min.  Rep.  578. 


1277        PARALLELISM  NOT  REQUIRED  UNDER  ACT  OF  1866.       S  576 


outcrop    appeared    in    the    Champion,    At   Last,    and 
Margaret,  or  Lupita,  showing  the  existence  at  the  sur- 


FlGUEE  54. 


§  576         EXTRALATERAL  RIGHTS  ON  THE  ORIGINAL  LODE.  1278 

face  of  a  broad  vein  with  part  of  the  apex  in  each  loca- 
tion. 

The  Eureka  company,  plaintiff  in  the  case,  asserted 
the  right  to  so  much  of  the  "Potts  Chamber"  as  lay 
to  the  east  of  a  vertical  plane  drawn  through  the  west 
end-lines  of  the  Champion,  At  Last,  and  Margaret 
claims,  produced, — that  is,  the  line  W-X-C. 

Objection  was  taken  by  defendant  to  the  validity  of 
the  patents  to  the  two  claims  last  named,  because  the 
end-lines  of  the  surface  locations  as  patented  were  not 
parallel,  as  required  by  the  act  of  1872,  both  patents 
having  been  issued  subsequent  to  the  passage  of  the 
act.  When  the  locations  were  made  upon  which  the 
patents  were  based  does  not  appear  in  the  opinion  of 
Judge  Field;  but  in  the  decision  of  the  supreme  court 
of  the  United  States,  to  be  hereafter  referred  to,  it  is 
stated  that  the  locations  were  made  prior  to  April, 
1871.°°  It  must  be  noted  that  the  Eureka  company,  as 
plaintiff  in  the  case,  was  compelled  to  affirmatively 
establish  its  right  to  the  ore  bodies  in  dispute.  There- 
fore, the  extent  of  its  extralateral  right  was  neces- 
sarily involved.  While  there  was  also  in  the  case  the 
element  of  an  agreed  compromise  line,  the  principal 
part  of  the  opinion  is  devoted  to  a  consideration  of  the 
rights  asserted  by  the  respective  parties,  regardless  of 
the  agreed  line.  We  quote  so  much  of  the  opinion  of 
the  court  as  deals  with  this  particular  branch  of  the 
case: — 

Within  the  end-lines  of  the  locations,  as  patented 
in  all  these  cases,  when  drawn  down  vertically 
through  the  lode,  the  property  in  controversy  falls. 
Objection  is  taken  to  the  validity  of  the  last  two 
patents,  because  the  end-lines  of  the  surface  loca- 

60  Eichmond  M.  Co.  v.  Eureka  M.  Co.,  103  U.  S.  839,  841,  26  L.  ed. 
557,  9  Morr.  Min.  Rep.  634. 


1279       PARALLELISM  NOT  REQUIRED  UNDER  ACT  OF  1866.       §  576 

tions  patented  are  not  parallel,  as  required  by  the 
act  of  1872;  but  to  this  objection  there  are  several 
obvious  answers. 

In  the  first  place,  it  does  not  appear  upon  what 
locations  the  patents  were  issued.  They  may  have 
been,  and  probably  were,  issued  upon  locations  made 
under  the  act  of  1866,  ivhere  such  parallelism  in  the 
end-lines  of  surface  locations  was  not  required.  The 
presumption  of  the  law  is,  that  the  officers  of  the 
executive  department  specially  char<^ed  with  the 
supervision  of  applications  for  mining  patents  and 
the  issue  of  such  patents  did  their  duty;  and  in  an 
action  of  ejectment  mere  surmises  to  the  contrary 
will  not  be  listened  to.  If,  under  any  possible  cir- 
cumstances, a  patent  for  a  location  without  such 
parallelism  may  be  valid,  the  law  will  presume  that 
such  circumstances  existed 

In  the  third  place,  the  defect  alleged  does  not  con- 
cern the  defendant,  and  no  one  but  the  government 
has  the  right  to  complain. 

When  the  case  reached  the  supreme  court  of  the 
United  States  on  writ  of  error,  the  writing  of  the  opin- 
ion was  assigned  to  Chief  Justice  Waite.  Among  the 
facts  stated  by  the  court  we  find  the  following  (italics 
are  ours) : — 

The  particular  mining  ground  in  dispute  is  situ- 
ated within  the  zone  of  limestone  which  has  been 
described  and  within  planes  drawn  vertically 
through  the  end-lines  of  the  Champion  claim  as 
patented  to  the  Eureka  company  and  within  planes 
drawn  vertically  down  through  the  extreme  points 
of  the  patented  locations  of  the  At  Last  and  the 
Margaret  claims,  at  right  angles  to  the  course  or 
strike  of  the  zone,  and  produced  so  as  to  follow  its 
dip.  The  top,  or  apex,  of  the  zone  is  within  the 
surface  lines  of  the  patents  to  the  Eureka  company, 
and  the  zone  dips  at  right  angles  to  its  course,  and 
on  such  a  dip  extends  under  the  surface  of  the 
Arctic  and  Utah  claims. 


§  576         EXTRALATERAL  RIGHTS  ON  THE  ORIGINAL  LODE.  1280 

In  deciding  the  case  the  court  said : — 

Upon  the  face  of  the  patents,  the  United  States  has 
granted  to  the  Eureka  the  right  to  all  veins,  lodes, 
and  deposits  the  tops,  or  apices,  of  which  lie  on  the 
inside  of  its  surveys  as  patented,  throughout  their 
entire  depth  and  wherever  they  may  go,  provided 
it  keeps  itself  within  the  end-lines  of  the  surveys. 
The  findings  that  the  ground  in  dispute  is  within 
the  end-lines,  and  that  the  apex  is  within  the  sur- 
face, settles  the  rights  of  the  parties  between  them- 
selves, as  well  under  their  patents  as  under  their 
compromise  agreement."^ 

The  rule  that  under  the  act  of  1866  end-lines  were 
not  required  to  be  parallel  has  been  repeatedly  reas- 
serted, not  only  by  the  supreme  court  of  the  United 
States,  but  by  other  courts.  This  will  appear  from  the 
following  excerpts  collated  from  the  decisions: — 

Under  the  act  of  1866  parallelism  in  the  end-lines 
of  a  surface  location  was  not  required.'^ 

Under  the  act  of  1866  parallelism  of  end-lines  was 
not  required." 

The  location  was  made  under  the  law  of  1866  which 
did  not  require  parallelism  of  end-lines." 

When  these  locations  were  made  (1866)  there  was 
no  law  requiring  such  parallelism." 

The  act  of  1866,  under  the  provisions  of  which  the 
patent  in  this  case  was  applied  for,  and  under  which 

81  Kichmond  M.  Co,  v.  Eureka  M.  Co.,  103  U.  S.  839,  847,  26  L.  ed. 
557,  9  Morr.  Min.  Eep.  634. 

62  Iron  S.  M.  Co.  v.  Elgin  M.  &  S.  Co.,  118  U.  S.  196,  208,  6  Sup. 
Ct.  Rep.  1177,  30  L.  ed.  98 — opinion  by  Justice  Field.  Followed  in 
East  Central  Eureka  M.  Co.  v.  Central  Eureka  M.  Co.,  204  U.  S.  266, 
269,  27  Sup.  Ct.  Rep.  258,  51  L.  ed.  476. 

53  Walrath  v.  Champion  M.  Co.,  63  Fed.  552,  556. 

64  Cons.  Wyoming  G.  M.  Co.  v.  Champion  M.  Co.,  63  Fed.  540,  550, 
18  Morr.  Min.  Rep.  113. 

66  Carson  City  G.  &  S.  M.  Co.  v.  North  Star  M.  Co.,  73  Fed.  597, 
599;  affirmed  on  appeal,  83  Fed.  658,  28  C.  C.  A.  333,  19  Morr.  Min. 
Rep.  118. 


1281       PARALLELISM  NOT  REQUIRED  UNDER  ACT  OF  1866.       §  576 

the  rights  of  defendant  in  error  accrued,  did  not  re- 
quire parallelism  of  end-lines." 

The  same  doctrine  was  practically  reiterated  by  the 
supreme  court  of  the  United  States  in  the  Del  Monte 
case. 

In  speaking  of  the  act  of  1872,  which  in  specific  terms 
required  end-lines  to  be  parallel.  Justice  Brewer  for  the 
court  said: — 

There  is  no  inherent  necessity  that  the  end-lines  of 
a  mining  claim  should  be  parallel;  yet  the  statute 
[act  of  1872]  has  so  specifically  prescribed." 

From  which  the  inference  is  irresistible  that  parallel- 
ism is  not  essential,  unless  the  statute  so  declares, 
which  the  act  of  1866  did  not. 

In  the  case  of  the  Argonaut  Mining  Co.  v.  Kennedy 
M.  &  M.  Co.,  a  case  to  be  hereafter  analyzed,  it  was 
strenuously  contended  that  this  doctrine  had  been  sub- 
sequently repudiated  by  the  supreme  court  of  the 
United  States,  but  this  contention  was  overruled  by  the 
supreme  court  of  California.^* 

The  principle  is  thus  established  beyond  question 
that  under  the  act  of  1866  end-lines  of  a  surface  loca- 
tion were  not  required  to  be  parallel. 

There  is  another  statement  by  Judge  Field  in  the 
Eureka  case  to  be  considered, — viz.,  that  neither  the 
form  nor  extent  of  the  surface  area  claimed  in  connec- 
tion with  the  lode  controlled  the  rights  in  the  located 
lode.     It  did  not  measure  the  miner's  rights  either  to 

68  Id.  (C.  C.  A.),  83  Fed.  658,  669,  28  C.  C.  A.  333,  19  Morr.  Min. 
Eep.  118. 

67  Del  Monte  M.  &  M,  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  67, 
18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370. 

68  131  Cal.  15,  28,  S2  Am.  St.  Rep.  317,  63  Pac.  148,  21  Morr.  Min. 
Rep.  163. 

Lindley  on  M. — 81 


§  576         EXTRALATERAL  RIGHTS  ON  THE  ORIGINAL  LODE.  1282 

the  linear  feet  upon  its  course  or  to  follow  the  dips, 
angles,  and  variations  of  the  vein/® 

Yet  when  the  vein  was  in  fact  inclosed  by  surface 
boundaries  the  locator  could  not  follow  it  on  its  course 
beyond  those  lines.^° 

Judge  Field,  speaking  of  the  local  rules  before  the 
court  in  the  Eureka  case,  said: — 

"What  the  miners  meant  by  allowing  a  certain  num- 
ber of  feet  on  a  ledge  was  that  each  locator  might 
follow  his  vein  for  that  distance  on  the  course  of  the 
ledge,  and  to  any  depth  within  that  distance.  So 
much  of  the  ledge  he  was  permitted  to  hold  as  lay 
within  vertical  planes,  drawn  downward  through  the 
end-lines  of  the  location,  and  could  be  measured  any- 
where hj  the  feet  on  the  surface.  If  this  were  not 
so,  he  might,  by  the  bend  of  his  vein,  hold  under  the 
surface  along  the  course  of  the  ledge  double  and 
treble  the  amount  he  could  take  on  the  surface. 
Indeed,  instead  of  being  limited  by  the  number  of 
feet  prescribed  by  the  rules,  he  might,  in  some  cases, 
oust  all  his  neighbors  and  take  the  whole  ledge.  No 
construction  is  permissible  which  would  substan- 
tially defeat  the  limitation  of  quantity  on  a  ledge, 
which  was  the  most  important  provision  in  the 
whole  system  of  rules.®^ 

The  precise  meaning  of  the  language  above  quoted — 
"If  this  were  not  so,  he  might,  by  the  bend  in  his  vein, 
hold  under  the  surface  along  the  course  of  the  ledge 
double  and  treble  the  amount  he  could  take  on  the 
surface.  Indeed,  instead  of  being  limited  by  the  num- 
ber of  feet  prescribed  by  the  rules,  he  might,  in  some 

89  Eureka  Case,  4  Saw.  302,  323,  Fed.  Cas.  No.  4548,  9  Morr.  Min. 
Rep.  578.  See,  also,  Golden  Fleece  v.  Cable  Cons.  Co.,  12  Nev.  312, 
328,   1  Morr.   Min.   Eep.    120. 

60  Ante,  §  60. 

61  Eureka  Case,  4  Saw.  302,  Fed.  Cas.  No.  4548,  9  Morr.  Min.  Eep. 
578. 


1283       PARALLELISM  NOT  BEQUmED  UNDER  ACT  OF  1866.       §  576 

cases,  oust  all  his  neighbors  and  take  the  whole 
ledge" — is  not  altogether  clear  when  construed  in  the 
light  of  his  declaration  that  end-lines  were  not  required 
to  be  parallel,  and  his  subsequent  conclusions, — 

That  both  defendant  and  the  plaintiff,  by  virtue  of 
their  respective  patents,  whether  issued  upon  loca- 
tions under  the  act  of  1866  or  under  the  act  of  1872, 
were  limited  to  veins  or  lodes  lying  within  planes 
drawn  vertically  downward  through  the  end-lines  of 
their  respective  locations;  and  that  each  took  the 
ores  found  within  those  planes  at  any  depth  in  all 
veins  or  lodes  the  top  or  apex  of  which  lay  within  the 
surface  lines  of  its  locations 

Inasmuch  as  the  ground  in  dispute  lies  within 
planes  drawn  vertically  downward  through  the  end- 
lines  of  the  plaintiff's  patented  locations,  our  con- 
clusion is,  that  the  ground  is  the  property  of  the 
plaintiff,  and  that  judgment  must  be  for  its  posses- 
sion in  its  favor. 

As  part  of  the  apex  was  in  both  the  At  Last  and  Mar- 
garet, and  as  their  end-lines  were  not  parallel,  but 
diverged  in  the  direction  of  the  dip,  these  conclusions 
would  seem  to  warrant  the  deduction  that  the  locator 
takes  all  of  the  vein  within  the  extended  vertical  end- 
line  planes.  His  statement  that,  by  following  a  bend 
in  the  vein,  the  locator  might  oust  all  his  neighbors, 
probably  referred  to  following  the  vein  in  its  course 
beyond  the  end-lines.  This  suggestion  is  quite  plau- 
sible, when  we  consider  one  of  the  contentions  of  the 
Richmond  company, — viz.,  that  they  had  a  right  to 
follow  the  vein  from  the  Tip  Top  incline  downward 
and  onward  across  the  Richmond  end-line  produced 
(W-X-C,  on. figure  54),  and  underneath  the  surface  of 
the  Arctic  and  Atlantic  to  the  length  claimed,  regard- 
less of  their  surface  boundaries. 


§  576         EXTRALATERAL  RIGHTS  ON  THE  ORIGINAL  LODE.  1284 

The  suggestion  is  rendered  more  plausible  by  a  con- 
sideration of  a  further  contention  of  the  Richmond 
company  as  to  the  character  of  the  vein  in  dispute, — 
i.  e.,  that  it  was  a  pipe-vein  ®^  lying  in  the  ground  as  we 
might  conceive  a  gas  or  water  main  to  lie,  inclined  and 
bending,  but  taking  a  general  easterly  course  under- 
ground. By  a  bend  in  the  vein  Judge  Field  certainly 
had  reference  to  the  longitudinal  course  of  the  vein, 
and  not  its  dip. 

The  deduction  that  Judge  Field  intended  to  an- 
nounce the  doctrine  that  under  the  act  of  1866  the  lode 
locator  had  a  right  to  all  of  the  vein  within  the  vertical 
diverging  end-line  planes,  would  be  all  but  conclusive 
but  for  the  following  paragraph: — 

Lines  drawn  vertically  down  through  the  ledge  or 
lode  at  right  angles  with  a  line  representing  this  ' 
general  course  at  the  ends  of  the  claimant's  line  of 
location  will  carve  out,  so  to  speak,  a  section  of  the 
ledge  or  lode  within  which  he  is  permitted  to  work 
and  out  of  which  he  cannot  pass. 

Certainly  the  Eureka  case,  as  adjudicated  by  both 
trial  and  appellate  courts,  is  authority  for  the  doctrine 
that  under  the  act  of  1866  a  patentee  or  locator  with 
diverging  end-line  planes  is  not  denied  all  extralateral 
right,  but  that  at  least  the  locator  or  patentee  is  en- 
titled to  that  segment  of  the  vein  underneath  the  sur- 
face which  is  found  (1)  within  the  extended  vertical 
diverging  end-line  planes,  and  (2)  within  rectangular 
end-line  planes  applied  to  the  extremities  of  linear 
length  on  the  vein  within  the  location.     And  this  etfect, 

62  See  Prof.  Blake's  Monograph,  "Ore  Deposits  of  Eureka  District," 
vol.  vi,  Trans.  Am.  Inst.,  M.  E.,  554,  560;  Dr.  Raymond's  Monograph, 
"Eureka-Richmond  Case,"  Id.  371,  378,  and  "What  is  a  Pipe- vein?" 
Id.  393. 


1285 


THE  ARGONAUT-KENNEDY   CASE. 


■M  I 


as  we  shall  see,  has  been  given  to  the  decision  by  the 
supreme  court  of  California. 

§  577.  The  Argonaut-Kennedy  case.— The  facts  in- 
volved in  the  Argonaut-Kennedy  case,  decided  by  the 
supreme  court  of  California,  may  be  best  outlined  with 
the  aid  of  a  diagram  (figure  55). 


Figure  55. 
The  Argonaut  company  owned  the  Pioneer,  or  Argo- 
naut, claim,  located  prior  to  the  passage  of  the  act  of 
1872,  and  had  entered  it  for  patent  and  received  a  cer- 
tificate of  purchase  prior  to  May  10,  1872,  but  the 
patent  was  not  issued  until  after  the  passage  of  the 
act.  The  end-lines  diverged  in  the  direction  of  the  dip. 
The  ore  bodies  in  dispute  were  upon  the  dip  of  the  vein 
within  the  Pioneer  end-line  planes  extended, — that  is, 
south  of  the  north  Pioneer  end-line  A-B-B'  and  under- 
neath the  surface  of  the  Silva  quartz  mine,  which  was 
owned   by   the   Kennedy   company.     The   Silva   was 


§  577         EXTR.VLATERAL  RIGHTS  ON  THE  ORIGINAL  LODE.  1286 

located  twenty  years  after  the  entry  of  the  Pioneer. 
The  ore  bodies  in  dispute  were  reached  by  the  Ken- 
nedy company  through  drifts  on  the  vein  run  from  the 
side  of  their  working  shaft  having  its  collar  within  the 
Kennedy  millsite.  The  Kennedy  company  also  owned 
the  Kennedy  quartz  mine,  located  on  the  same  vein 
adjoining  the  Pioneer  on  the  north,  but  asserted  no 
right  to  the  ore  bodies  in  dispute  by  reason  of  such 
ownership.  All  the  underground  works  of  the  Ken- 
nedy company  were  within  the  extralateral-right  lines 
of  the  Kennedy  quartz  mine,  except  that  some  of  the 
levels  were  extended  south  of  the  prolonged  common 
boundary  between  the  Pioneer  and  Kennedy  proper- 
ties, and  this  extension,  together  with  the  extraction  of 
ore  south  of  that  boundary  was  the  trespass  com- 
plained of. 

The  Kennedy  company  defended  upon  the  following 
grounds: — 

(1)  The  end-lines  of  the  Pioneer  are  not  parallel — 
consequently  it  is  not  entitled  to  extralateral  rights; 
the  ore  bodies  in  dispute,  being  underneath  the  sur- 
face of  the  Silva,  belong  to  that  claim  by  virtue  of  its 
common-law  right; 

(2)  That  if  it  be  held  that  the  rights  upon  the 
Pioneer  vein  are  referable  solely  to  the  act  of  1866,  that 
act,  by  implication,  required  that  end-lines  should  be 
parallel,  as  a  condition  precedent  to  the  exercise  of  the 
extralateral  right; 

(3)  That  even  if  under  the  act  of  1866  parallelism  of 
end-lines  was  not  required,  the  owners  of  the  Pioneer, 
having  accepted  a  patent  issued  after  the  passage  of 
the  act  of  1872,  it  is  bound  by  the  requirement  of  paral- 
lelism of  end-lines  embodied  in  that  law.  As  the  end- 
lines  are  not  parallel,  there  is  no  extralateral  right,  and 


1287  THE  ARGONAUT-KENNEDY  CASE.  §  577 

the  ore  bodies  in  dispute  fall  to  the  Silva  by  common- 
law  right; 

(4)  That  if,  notwithstanding  the  nonparallelism  of 
the  Pioneer  end-lines,  the  extralateral  right  is  not 
wholly  denied,  such  right  should  be  defined  by  apply- 
ing a  plane  parallel  to  the  south  end-line,  and  the  north- 
ern extremity  of  the  vein  within  the  Pioneer  location, 
on  the  theory  that  the  description  contained  in  the 
patent  commenced  at  the  south  end  of  the  claim. 

The  contention  of  the  Argonaut  Mining  Company 
was  as  follows: — 

(1)  The  title  of  the  Argonaut  company  to  the 
Pioneer,  or  Argonaut,  mine  originated,  ripened,  and 
became  vested  in  its  predecessors  under  the  act  of  July 
26,  1866.  This  act  did  not,  either  in  tenns  or  inferen- 
tially,  require  end-lines  to  be  parallel,  and  no  conse- 
quence is  attached  to  a  deviation  from  parallelism; 

(2)  Although  the  end-lines  were  not  required  to  be 
parallel  under  the  act  of  1866,  yet  if  by  any  process  of 
reasoning  any  limitation  upon  the  extralateral  right 
was  imposed  upon  the  locator's  title,  by  reason  of  the 
divergence  of  the  end-lines,  such  limitation  was  re- 
moved by  the  act  of  May  10,  1872,  which  granted  to 
owners  of  locations  theretofore  made  the  right  to  pur- 
sue the  vein  on  its  downward  course  between  the  end- 
line  planes  of  such  location  as  it  then  existed; 

(3)  The  title  evidenced  by  the  certificate  of  pur- 
chase issued  prior  to  the  passage  of  the  act  of  1872  was 
the  complete  equitable  title,  equivalent  for  all  practical 
purposes  to  the  issuance  of  a  patent.  Congress  could 
not  deprive  the  purchaser  of  any  rights  acquired  under 
that  certificate  nor  cast  upon  such  purchaser  any  addi- 
tional burdens.  It  is  quite  manifest,  however,  that 
congress  never  intended  that  the  estate  of  any  mining 


§  577         EXTRALATER.\L  RIGHTS  ON  TIIE  ORIGINAL  LODE.  1288 

locator  "held  prior  to  May  10,  1872,  should  suffer  any 
diminution  or  curtailment  by  reason  of  the  act  passed 
on  that  day; 

(4)  The  patent  of  the  United  States  issued  to  the 
predecessor  in  title  of  the  Argonaut  company  in  terms 
grants  the  vein  throughout  its  entire  depth  between  the 
end-lines  described  in  the  patent  and  these  lines  ex- 
tended in  their  own  direction.  The  land  department 
had  jurisdiction  of  the  subject  matter.  If  more  was 
given  than  the  patentee  should  have  had,  it  is  a  ques- 
tion between  the  government  and  the  patentee;  out- 
siders cannot  collaterally  assail  the  patent; 

(5)  The  courts  cannot  construct  end-lines.  The  end- 
lines  described  in  a  patent  issued  by  the  executive  can- 
not be  readjusted  by  the  judiciary.  The  extralateral 
rights  of  the  Pioneer  must  be  determined  by  the  calls 
of  the  patent  in  connection  with  the  law  under  which 
the  right  to  it  became  perfected,  and  the  physical  facts 
as  to  the  course  of  the  vein  through  the  ground; 

(6)  If  this  be  not  true,  the  only  method  for  adjust- 
ing inequalities  for  which  any  judicial  precedent  can  be 
found  is  announced  in  the  Eureka  case, — i.  e.,  lines 
drawn  at  right  angles  to  the  course  of  the  vein,  at  the 
extreme  points  on  the  vein  within  the  location.  The 
application  of  this  theory  will  give  all  the  ore  bodies 
in  dispute  (and  more)  to  the  Argonaut  company; 

(7)  The  agreed  statement  of  facts  disclosed  that  at 
the  time  the  predecessor  in  title  of  the  Kennedy  Min- 
ing Company  applied  for  patent  a  controversy  arose 
between  the  owners  of  the  Pioneer  and  Kennedy  as  to 
the  time  position  of  the  boundary  between  them,  the 
line  A-B  on  figure  56,  post. 

The  Pioneer  owner  initiated  an  adverse  proceeding. 
Thereafter  a  compromise  agreement  between  the  two 


1289  THE  ARGONAUT-KENNEDY   CASE.  /  §  577 

companies  was  entered  into  and  tlie  line  fixed  as  it  was 
ultimately  described  in  the  patents.  This  agreement 
was  filed  in  the  land  office  in  the  patent  proceeding. 
The  Argonaut  company  contended  that  the  Kennedy 
company  was  estopped  from  denying  the  right  of  the 
Argonaut  company  to  the  underground  segment  of  the 
veins  lying  south  of  the  agreed  extended  end-line 
boundary — A-B-B'  (on  figure  56). 

The  case  was  tried  before  Judge  G.  W.  Nicol,  su- 
perior judge  of  Tuolumne  county,  upon  an  agreed 
statement  of  facts.  He  rendered  judgment  in  favor  of 
the  Argonaut  company,  declining,  however,  to  consider 
the  compromise  agreement  as  material  or  as  possessing 
evidentiaiy  value.  An  appeal  was  perfected  to  the 
supreme  court  of  California,  which  court  affiimed  the 
judgment. 

The  opinion  of  the  appellate  court  may  be  epitomized 
as  follows : — 

(1)  The  Argonaut  company  was  entitled  to  all  the 
rights  on  the  vein  which  would  attach  to  a  location  in 
that  foi-m  under  the  act  of  1866.  The  act  of  1872  did 
not  deprive  that  company  of  anything  theretofore  ac- 
quired. On  the  contrary,  such  rights  were  specifically 
confirmed; 

(2)  Under  the  act  of  1866  end-lines  of  a  surface  loca- 
tion were  not  required  to  be  parallel.  Locations  with 
diverging  end-lines  were  not  denied  all  extralateral 
rights ; 

(3)  The  intent  of  the  act  of  1866  was,  that  the  locator 
of  a  vein  should  have  the  same  length  on  the  lode  un- 
derneath the  surface  as  he  had  on  the  surface.  As 
diverging  end-lines,  if  they  were  to  be  taken  as  defin- 
ing the  extralateral  right,  would  give  to  the  locator 
more  in  length  underground  than  the  locator  had  at 


§  577         EXTRALATERAL  RIGHTS  ON  THE  ORIGINAL  LODE.  1290 

the  surface,  the  contention  that  he  was  entitled  to  those 
underground  parts  of  the  vein  between  the  diverging 
end-line  planes  cannot  be  sustained; 

(4)  The  act  of  1872,  purporting  to  convey  to  the  own- 
ers of  claims  located  prior  to  the  passage  of  the  act 
veins  throughout  their  entire  depth  within  the  end-line 
planes  of  the  location,  cannot  be  construed  as  a  grant 
of  an  extralateral  right  between  diverging  end-line 
planes.  The  act  in  this  regard  was  not  intended  to  en- 
large the  rights  upon  the  original  vein,  as  such  rights 
existed  at  the  date  of  the  passage  of  the  act; 

(5)  The  rights  of  the  Argonaut  company  to  the  vein 
is  limited  to  planes  at  the  limit  of  their  right  to  the  lode 
on  the  surface  at  right  angles  to  the  general  course  of 
the  lode.  The  doctrine  of  the  Eureka  case  in  this 
behalf  was  approved  and  followed;*' 

(6)  The  court  overruled  the  contention  of  the  Ken- 
nedy company  to  the  effect  that  parallelism  should  be 
obtained  by  drawing  a  line  at  the  northern  extremity  of 
the  lode  within  the  Pioneer  location,  parallel  to  the 
south  end-line.®* 

The  contention  of  the  Argonaut  company  as  to  es- 
toppel was  entirely  ignored. 

The  effect  of  this  decision  is  illustrated  on  figure  56. 
It  will  be  observed  that  the  line  1-2  indicates  the  rect- 
angular plane  parallel  to  3-4,  the  end-line  A-B-B'  cross- 
ing the  lode  at  less  than  a  right  angle.  As  we  do  not 
conceive  it  possible  that  the  Argonaut  company  could 
in  any  event  go  beyond  its  north  end-line  plane,  as  it 
was  an  agreed  boundary,  the  result  of  the  decision  is 
to  award  an  underground  segment  of  the  vein  between 

63  This  principle  was  recognized  in  a  subsequent  case.  Daggett  v. 
Yreka  M.  &  M.  Co.,  149  Cal.  357,  86  Pac.  968,  976. 

64  Argonaut  M.  Co.  v.  Kennedy  M.  &  M.  Co.,  131  Cal.  15,  82  Am. 
St.  Eep.  317,  63  Pac.  148,  21  Morr.  Min.  Rep.  163. 


1291 


THE  ARGONAUT-KEXXEDY   CASE. 


end-lines  sliglitly  converging  in  the  direction  of  the 
dip. 

The  case  was  taken  to  tlie  supreme  court  of  the 
United  States  on  writ  of  error,  and  that  tribunal  deter- 
mined the  case  solely  on  the  question  of  the  estoppel 
claimed  by  the  Argonaut  company,  not  even  dis- 
cussing any  of  the  questions  upon  which  the  state  court 
based  its  opinions.^^  But  in  a  later  case  it  cited  the 
decision  of  the  supreme  court  of  California  in  the 
Argonaut-Kennedy  case  as  authority  for  awarding  an 
extralateral  right  upon  locations  with  nonparallel  end- 
lines  located  under  the  act  of  1866.*'^' 


J^  :/S':7-9/rr 


PIQNEEB  (/T/^GON/^UT)  QIMRTZ  AmVE. 


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JV.JS'l-S-'W        I 


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« 


Figure  56. 

65  Kennedy  M.  &  M.  Co.  v.  Argonaut  M.  Co.,  1S9  U.  S.  1,  23  Sup. 
Ct.  Rep.  501,  47  L.  ed.  685. 

66  East  Central  Eureka  M.  Co.  v.  Central  Eureka  M,  Co.,  204  U.  S. 
266,  269,  27  Sup.  Ct.  R«p.  258,  51  L.  ed.  476. 


§  577a    extralateral.  rights  on  the  original  lode.       1292 

These  two  cases,  the  Eureka  and  Argonaut,  are  un- 
doubted authority  for  the  principle  that  the  owner  of  a 
claim  located  under  the  act  of  1866,  with  diverging  end- 
lines,  is  entitled  to  all  that  part  of  the  vein  between  the 
extended  vertical  end-line  planes  which  also  lies  be- 
tween vertical  planes  established  at  the  extremities 
of  the  linear  distance  on  the  vein  measured  at  the  sur- 
face at  right  angles  to  the  general  course  of  the  vein 
at  the  surface  within  the  location. 

No  other  solution  of  the  problem  has  thus  far  been 
suggested  by  the  courts. 

§  577a.  Application  of  rectangular  planes  in  cases 
of  converging  end-lines  of  locations  under  the  act  of 
1866.— Mr.  Morrison,  in  the  thirteenth  edition  of  his 
'^ Mining  Rights,"  makes  the  suggestion  that  if  the 
diverging  end-line  case  of  Argonaut  M.  Co.  v.  Ken- 
nedy M.  &  M.  Co.,  discussed  in  a  previous  section,  was 
correctly  decided,  there  is  no  reason  for  drawing  a 
distinction  between  end-lines  converging  and  those 
diverging,  and  that  the  application  of  end-line  planes 
at  right  angles  to  the  course  of  the  vein  is  just  as 
logical  in  the  case  of  converging  as  it  is  in  cases  of 
diverging  end-lines.®^ 

Mr.  Costigan,  in  his  treatise  on  Mining  Law,^^  coin- 
cides with  Mr.  Morrison's  suggestion. 

With  regard  to  converging  end-line  cases  discussed 
in  a  previous  section,''^  we  have  noted  that  no  claim 
was  made  in  any  of  them  for  any  part  of  the  vein  out- 
side of  the  converging  planes.  In  some  of  the  cases, 
the  rectangular  theory,  if  asserted,  would  have  prob- 
ably been  resisted  by  coterminous  mine  owners,  the 
form  of  whose  claims  had  been  adjusted  to  the  surface 

67  Morr.  Min.  Eights,  13th  ed.,  173;   14th  ed.,  198. 

68  Page  416. 

69  §  574. 


1293 


APPLICATION    OF   RECTANGULAR   PLACES. 


§577a 


lines  of  tlie  older  locations,  thus  raising  other  issues 
and  necessitating  bringing  in  other  parties,  which 
would  have  complicated  the  cases.  All  the  substantial 
relief  which  the  situation  in  the  respective  cases  re- 
quired was  obtained  through  the  legal  recognition  of 
converging  planes.  The  element  of  estoppel,  as  in  the 
Argonaut-Kennedy  case,  might  exist  which  would  pre- 
vent the  application  of  the  rectangular  plane  theory, 
and  it  would  be  unsafe  to  lay  down  any  general  rule 
in  advance  of  judicial  expression. 


Article  III.  Extralateral  Eights  Flowing 
FROM  Locations  Made  Under  the  Act  of  Maij 
10,  1872,  AND  THE  Revised  Statutes. 


§  581.     Introductory. 

§  582.  Parallelism  of  end-lines  a 
condition  precedent  to 
the  exercise  of  the  ex- 
tralateral right. 

§  583.  "Broad  lodes" — Apex  bi- 
sected by  side-line  com- 
mon to  two  locations. 

§  584.  Vein  entering  and  depart- 
ing through  the  same 
side-line. 

§  585.  The  extralateral  right  ap- 
plied to  the  ideal  lode. 

§  586.  Vein  crossing  two  parallel 
side-lines  —  The  Flag- 
staff case. 

§  587.  Same  —  The  Argentine- 
Terrible  case. 

§  588.  Same  — The  King-Amy 
case. 

§  589.  Deductions  from  side-end- 
Mne  cases — Extralateral 


right  in  such  cases  de- 
fined by  vertical  planes 
drawn  through  the  side- 
end  lines  produced. 

§  590.  Vein  crossing  two  opposite 
nonparallel  side-lines. 

§  591.  Vein  crossing  one  end-line 
and  a  side-line. 

§  591a.  Vein  crossing  one  end-line, 
passing  out  of  a  side- 
line, then  returning, 
and  ultimately  passing 
out  of  either  the  other 
side  or  end  line. 

§  592.  Vein  with  apex  wholly 
within  the  location,  but 
crossing  none  of  its 
boundaries,  or  entering 
at  one  end-line  and  not 
reaching  any  other 
boundary. 

§  593.  Extralateral  right  as  to 
veins  other  than  the  one 


§581 


EXTRALATERAL  RIGHTS   UNDER  ACT    OF    1872, 


1294 


upon  which  the  location 
is  based. 

§  594.  Other  illustrations  of  the 
application  of  the  prin- 
ciples discussed. 

§  595.  Extralateral  rights  on 
other  lodes  conferred 
by  the  act  of  1872  on 
owners  of  claims  previ- 
ously located  where  the 
end-lines  are  not  par- 
allel. 

§  596.     Extralateral    right    where 


the  apex  is  found  in 
surface  conflict  between 
junior  and  senior  lode 
locations — Practical  ap- 
plication of  the  Del 
Monte  case. 

§  597.  Extralateral  right  where 
the  apex  is  found  in 
surface  conflict  between 
junior  lode  locators  and 
prior  placer  or  agricul- 
tural patents. 

§  598.     Conclusions. 


§  581.  Introductory. — We  are  now  to  consider  the 
subject  of  the  extralateral  right  flowing  from  locations 
initiated  subsequent  to  the  passage  of  the  act  of  May 
10,  1872,  and  to  note  the  conditions  and  limitations 
under  which  it  may  be  exercised.  No  branch  of  the 
mining  law  presents  so  many  intricate  and  varied 
questions,  and  there  are  none  more  difficult  to  treat 
comprehensively  and  concisely.  Certain  important 
principles  governing  it  have  been  established,  and  are 
beyond  the  domain  of  speculation.  Others  await  the 
decision  of  the  supreme  court  of  the  United  States,  the 
final  arbiter  upon  all  questions  arising  under  the 
federal  laws. 

Manifestly,  the  application  of  the  law  to  individual 
cases  requires  the  consideration  of  physical  conditions 
existing  in  each.  Where  a  patented  surface  area  is  in- 
vaded, the  patentee  need  but  produce  the  instrument 
under  which  he  deraigns  title  from  the  paramount  pro- 
prietor to  put  the  invader  upon  proof  of  justification; 
but  where,  in  pursuit  of  his  vein  on  its  downward 
course,  out  of  and  beyond  vertical  planes  drawn  down- 
ward through  his  surface  boundaries,  his  right  is  chal- 
lenged, he  is  called  upon  to  show  something  more  than 
appears  upon  the  face  of  the  patent,  and  establish  facts, 


1295  INTRODUCTORY.  §  581 

the  existence  of  which  are  not  even,  prima  facie,  pre- 
sumed from  that  instrument. 

Naturally,  therefore,  the  discussion  leads  us  into  geo- 
logical questions,  sometimes  simple,  other  times  com- 
plex. The  peculiar  facts  found  in  one  case  may  never 
have  their  precise  parallel  in  another.  For  that  rea- 
son, each  case  presented  must  be  analyzed  in  the  light 
of  the  facts  established,  or  as  they  appeared  to  the 
court  deciding  it.  We  may  have  to  reach  the  ultimate 
goal  by  circuitous  routes  and  easy  stages. 

The  spirit  in  which  the  statutes  upon  this  subject 
should  be  approached  is  aptly  stated  by  the  supreme 
court  of  the  United  States,  speaking  through  Justice 
Brewer,  as  follows: — 

It  must  be  borne  in  mind  in  considering  the  ques- 
tions presented  thatwe  are  dealing  simply  with  statu- 
tory rights.  There  is  no  showing  of  any  local  cus- 
toms or  rules  affecting  the  rights  defined  in  and 
prescribed  by  the  statute,  and  beyond  the  terms  of 
the  statute  courts  may  not  go.  They  have  no  power 
of  legislation.  They  cannot  assume  the  existence  of 
any  natural  equity  and  rule  that  by  reason  of  such 
equity  a  party  may  follow  a  vein  into  the  territory  of 
his  neighbor  and  appropriate  it  to  his  own  use.  If 
cases  arise  for  which  congress  has  made  no  provi- 
sion, the  courts  cannot  supply  the  defect.  Congress 
having  prescribed  the  conditions  upon  which  extra- 
lateral  rights  may  be  acquired,  a  party  must  bring 
himself  within  those  conditions,  or  else  be  content 
with  simply  the  mineral  beneath  the  surface  of  his 
territory.  It  is  undoubtedly  true  that  the  primary 
thought  of  the  statute  is  the  disposal  of  the  mines 
and  minerals,  and  in  the  interpretation  of  the  statute 
this  primary  purpose  must  be  recognized  and  given 
elfect.  Hence,  whenever  a  party  has  acquired  the 
title  to  ground  within  whose  surface  area  is  the  apex 
of  a  vein,  with  a  few  or  many  feet  along  its  course 
or  strike,  a  right  to  follow  that  vein  on  its  dip  for 


§  582  EXTRALATERAL  RIGHTS   UNDER   ACT   OP    1872.  1296 

the  same  lengtli  ought  to  be  awarded  to  him  if  it  can 
be  done,  and  only  if  it  can  be  done,  under  any  fair 
and  natural  construction  of  the  language  of  the  stat- 
ute. If  the  surface  of  the  ground  was  everywhere 
level,  and  veins  constantly  pursued  a  straight  line, 
there  would  be  little  difficulty  in  legislation  to  pro- 
vide for  all  contingencies;  but  mineral  is  apt  to  be 
found  in  mountainous  regions  where  great  irregu- 
larity of  surface  exists  and  the  course  or  strike  of 
the  veins  is  as  irregular  as  the  surface,  so  that  many 
cases  may  arise  in  which  statutory  provisions  will 
fail  to  secure  to  a  discoverer  of  a  vein  such  an 
amount  thereof  as  equitably  it  would  seem  he  ought 
to  receive.^" 

§  582.    Parallelism  of  end-lines  a  condition  prece- 
dent to  the  exercise  of  the  extralateral  right.— It  is 

needless  to  quote  the  language  of  sections  twenty-three 
hundred  and  twenty  and  twenty-three  hundred  and 
twenty-two  of  the  Revised  Statutes.  The  former  pre- 
scribes the  nature  and  extent  of  the  location,  and  the 
latter  defines  the  extent  of  the  extralateral  right.  The 
law  does  not  in  terms  impose  as  the  penalty  for  failure 
to  parallel  the  end-lines,  the  deprivation  of  all  extra- 
lateral  right,  but  the  courts  construing  the  two  sections 
together  have  announced  the  conclusion  that  such 
parallelism  is  essential  to  the  exercise  of  the  right." 
When  we  speak  of  end-lines,  we  mean  such  lines  as  are 
crossed  by  the  lode  on  its  course.  As  we  have  here- 
tofore noted,  side-lines  may  become  end-lines,  or,  as  we 
have  called  them  for  descriptive  purposes,  side-end 
lines." 

70  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  66, 
67,  18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370. 

71  Daggett  V.  Yreka  M.  &  M.  Co.,  149  Cal.  357,  86  Pac.  968,  976. 

72  Ante,  §  367. 


1297  PARALLELISM   OF   END-LINES  NECESSARY.  §  582 

The  leading  case  upon  the  subject  of  nonparallelism, 
and  the  consequences  flowing  from  it,  is  that  of  the 
Iron  Silver  Mining  Company  v.  Elgin  Mining  and 
Smelting  Company,  decided  by  the  supreme  court  of 
the  United  States,"  familiarly  known  as  the  ** Horse- 
shoe case,"  the  illustration  of  which  is  photographed 
upon  the  brain  of  every  mining  practitioner. 

The  doctrine  there  announced  by  a  majority  of  the 
court  is  as  follows: — 

Under  the  act  of  1866,  parallelism  in  the  end-lines 
of  a  surface  location  was  not  required,  but  where  a 
location  has  been  made  since  the  act  of  1872,  such 
parallelism  is  essential  to  the  existence  of  any  right 
in  the  locator  or  patentee  to  follow  his  vein  outside 
of  the  vertical  planes  drawn  through  the  side-lines. 
His  lateral  right  by  the  statute  is  confined  to  such 
portion  of  the  vein  as  lies  between  such  planes  drawn 
through  the  end-lines  and  extended  in  their  own 
direction;  that  is,  between  parallel  vertical  planes. 
It  can  embrace  no  other. 

We  reproduce  the  diagram  (figure  57)  for  illustra- 
tive purposes. 

The  case  arose,  as  did  all  others  in  which  the  Iron 
Silver  Mining  Company  was  involved,  out  of  conflict- 
ing rights  to  certain  portions  of  the  blanket  deposits 
of  Leadville.  Dr.  Raymond  discusses  the  case  fully  in 
his  monograph,  ''Lode  Locations."  ^* 

It  appears  that  the  line  marked  "apex"  on  figure  57 
represents  a  vein  exposure  caused  by  the  erosion  of 
California  Gulch,  the  only  exposure  found  in  that 
neighborhood.     The  vein  on  its  downward  course  had 

73  ]18  U.  S.  196,  6  Sup.  Ct.  Kep.  1177,  30  L.  ed.  98,  15  Morr.  Min. 
Kep.  641;  cited  in  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171 
U.  S.  55,  67,  18  Sup.  Ct.  Kep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370. 

7*  Trans.  Am.  Inst.  M.  E.,  vol.  xv,  p.  272. 
Lindley  on  M. — 82 


582  EXTRALATERAL  RIGHTS   UNDER  ACT   OF    1872. 


1298 


a  sliglit  inclination  from  the  horizontal  in  the  direction 
of  the  Gilt  Edge.  The  form  assumed  by  the  line  of 
vein  exposure  may  be  illustrated  in  a  homely  way  by 
a  bite  taken  out  of  a  horizontally-held  sandwich/' 

In  another  portion  of  this  treatise/'  we  have  pre- 
sented geological  cross-sections  illustrating  the  posi- 
tion in  the  earth  of  this  form  of  deposit,  showing  the 


*** 


N.      ^ 


:^j^' 


FiGUEE   57. 

difficulties  of  determining  which  is  the  strike  and 
which  is  the  dip  of  the  vein.  Assuming  the  vein  ex- 
posure to  be  an  apex,  the  predecessor  in  title  of  the 
Iron  Silver  Mining  Company  laid  his  location  along 


75  We  are  indebted  to  Dr.  Eaymond  for  this  comparison, 

76  Figures  20a  and  21b,  p.  702. 


1299  PARALLELISM   OF  END-LINES  NECESSARY.  §  582 

what  he  supposed  to  be  the  course  of  the  vein,  produc- 
ing the  fantastic  results  shown  in  the  figure,  being  un- 
able to  draw  a  line  at  the  southwestern  terminus  of  the 
so-called  apex,  which  would  be  across  the  apex  and  at 
the  same  time  be  parallel  to  the  northwest  end-line, 
x-y.  The  so-called  apex  crossed  the  line  v-i,  which 
was  not  parallel  to  x-y,  the  two  lines  diverging  at  an 
obtuse  angle  in  the  direction  of  what  was  determined 
to  be  the  dip  of  the  vein.  Therefore,  the  right  to  pur- 
sue the  vein  underneath  the  Gilt  Edge  claim  was  de- 
nied. A  strenuous  plea  was  made  in  the  case  for  the 
judicial  readjustment  of  the  boundaries,  so  as  to  give 
to  the  Iron  Silver  Mining  Company  a  segment  of  the 
vein  in  depth,  but  the  majority  of  the  court  held,  as 
we  have  heretofore  observed,  that  it  had  no  power  to 
make  locations,  but  that  the  miner  must  stand  or  fall 
upon  the  one  he  makes  himself."  Chief  Justice  Waite, 
with  whom  concurred  Mr.  Justice  Bradley,  dissented" 
from  the  views  of  the  majority  of  the  court,  favoring 
the  application  of  rectangular  end-line  planes  to  the 
extremities  of  the  vein  within  the  surface  location,^® 
the  rule  applied  in  the  Eureka  and  Argonaut  cases  to 
locations  m.ade  under  the  act  of  1866.^° 

While  the  local  conditions  out  of  which  this  case 
arose  were  peculiar,  there  is  no  reasonable  expectation 
that  the  doctrine  of  the  case,  as  hereinbefore  quoted, 
will  be  disturbed  where  the  lines  crossing  the  lode  di- 
verge in  the  direction  of  the  dip. 

77  Principle  referred  to  in  Daggett  v.  Yreka  M.  &  M.  Co.,  149  Cal. 
357,  86  Pac.  968,  974. 

78  This  dissent  is  commented  on  in  East  Central  Eureka  M.  Co.  v. 
Central  Eureka  M.  Co.,  204  U.  S.  266,  269,  27  Sup.  Ct.  Rep.  258,  51 
L.  ed.  476,  and  in  Daggett  v.  Yreka  M.  &  M.  Co.,  149  Cal.  357,  86  Pac. 
968,  974. 

79  118  U.  S.  196,  209,  6  Sup.  Ct.  Rep.  1177,  30  L.  ed.  103,  15  Morr. 
Min.  Rep.  641. 

80  Ante,   §§   576.  577. 


§  582  EXTRALATERAL   RIGHTS   UNDER   ACT   OF    1872.  130O 

It  lias  been  applied  by  Judge  Knowles  to  a  location 
having  the  form  of  a  triangle,''  and  will  probably  con- 
trol all  forms  of  locations,  varying  from  a  square  to  a 
crescent,  where  the  production  of  the  end-lines  would 
create  exaggerated  inequalities  in  length  as  the  vein  is 
followed  in  depth. 

Where,  however,  the  two  lines  crossing  the  lode  con- 
verge in  the  direction  of  the  dip,  intersecting,  as  they 
are  produced,  at  some  point  beyond  the  side-lines,  we 
cannot  see  upon  what  principle  the  doctrine  can  be 
maintained.  "Where  the  reason  of  the  rule  ceases,  the 
rule  itself  should  cease.  To  say  to  a  claimant  with 
converging  end-lines,  ''The  law  permits  you  to  take  as 
much  of  the  vein  in  its  downward  course,  beyond  the 
side-lines,  as  you  may  include  within  parallel  surface 
end-lines.  You  have  taken  less  than  you  might  have 
acquired;  therefore,  you  shall  have  nothing,"  is  il- 
logical. 

What  we  have  heretofore  said  upon  this  subject  of 
converging  end-lines  under  the  act  of  1866'^  applies 
with  equal  force  to  locations  made  under  the  later 
laws.®^ 

In  several  decisions  the  supreme  court  of  California 
has  questioned  the  doctrine  that  a  locator  under  the  act 
of  1872,  the  end-lines  of  whose  locations  converge  in 
the  direction  of  the  dip,  is  entitled  to  the  extralateral 
right  between  the  converging  planes. 

In  Central  Eureka  M.  Co.  v.  East  Central  Eureka  M. 
Co.'*  the  court  expressed  the  opinion  arguendo  that  the 

81  Montana  Co.,  Ltd.,  v.  Clark,  42  Fed.  626,  628,  16  Morr.  Min.  Rep. 
80. 

82  Ante,  §  574. 

83  This  doctrine  was  conceded  by  counsel  as  to  the  extralateral  rights 
on  the  Emma  claim  involved  in  the  case  of  Bunker  Hill  &  Sullivan  M, 
&  C.  Co.  V.  Empire  State-Idaho  M.  &  D.  Co.,  109  Fed.  538,  540,  48 
C.  C.  A.  665,  21  Morr.  Min.  Rep.  317. 

M  146  Cal.  147,  79  Pac.  834,  835,  9  L.  R.  A.,  N.  S.,  940. 


1301  PARALLELISM   OF   END-LINTiS  NECESSARY.  §  582 

decisions  in  Iron  S.  M.  Co.  v.  Elgin  M.  &  S.  Co./'  Del 
Monte  M.  &  M.  Co.  v.  Last  Cliance  M.  &  M.  Co.,''  and 
Argonaut  M.  Co.  v.  Kennedy  M.  &  M.  Co."  inclined  to 
the  conclusion  that  extralateral  rights  are  granted 
under  the  act  of  1872  only  when  the  end-lines  are 
parallel,  and  that  this,  inferentially  at  least,  negatived 
any  extralateral  right  where  the  end-lines  converged 
in  the  direction  of  the  dip.  The  court,  however,  held 
that  it  was  unnecessary  to  decide  the  question  in  the 
case  before  it. 

In  the  case  of  Daggett  v.  Yreka  M.  Co.''  the  court 
said  that  the  locators  acquire  no  extralateral  rights  to 
the  dip  of  the  vein  unless  the  end-lines  are  parallel. 
The  question  here  discussed  was  not  involved  in  that 
case.  In  the  later  case  of  McElligott  v.  Krogh'^  the 
trial  court  found  that  the  end-lines  were  substantially 
parallel,  as  appeared  from  a  map  filed  in  the  cause. 
The  map  showed  converging  end-lines.  The  findings 
being  thus  contradictory,  the  supreme  court  was  not 
able  to  pass  upon  the  "interesting  question"  as  to 
whether  there  would  be  extralateral  rights  on  a  claim 
with  converging  end-lines. 

The  Central  Eureka  case  reached  the  supreme  court 
of  the  United  States,  which  affirmed  the  judgment 
without  alluding  to  the  question  here  discussed.  The 
Argonaut-Kennedy  case  was  affirmed  by  the  supreme 
court  of  the  United  States""  without  reference  to  the 
extralateral  right  problems  involved  in  the  case. 

85  118  U.  S.  197,  6  Sup.  Ct.  Rep.  1177,  30  L.  ed.  98. 

80  171  U.  S.  55,  18   Sup.  Ct.  Rep.   895,  43  L.  ed.   72,   19  Morr.  Min. 

Eep.  370. 

87  131  Cal.  15,  25,  82  Am.  St.  R«p.  317,  63  Pac.  148,  21  Morr.  Min. 
Kep.  163. 

88  149  Cal.  357,  86  Pac.  968,  974. 

89  151  Cal.  126,  90  Pac.  823,  827. 

flo  189  U.  S.  1,  23  Sup.  Ct.  Kep.  501,  47  L.  ed.  685. 


§  582  EXTBALATERAL  RIGHTS   UNDER  ACT   OF    1872.  1302 

The  question,  therefore,  as  to  whether  any  extralat- 
eral  right  is  to  be  awarded  in  cases  of  converging  end- 
lines  on  locations  made  under  the  act  of  1872  is  res 
Integra,  so  far  as  the  courts  are  concerned. 

The  author  is  not  disposed  to  recede  from  his  posi- 
tion heretofore  taken  that  the  reason  of  the  rule  sanc- 
tions the  exercise  of  an  extralateral  right  when  end- 
lines  are  converging  and  denies  such  right  when  they 
are  diverging. 

With  this  qualification  there  can  be  no  question  as 
to  the  scope  and  meaning  of  the  rule  announced  in  the 
Elgin  case. 

We  have  heretofore  noted  ^^  that  the  supreme  court 
of  California,  following  the  dictum  of  Judge  Field  in 
the  Eureka  case,  has  stated  that  the  provisions  of  the 
act  of  1872,  requiring  the  end-lines  of  each  claim  to  be 
parallel,  is  merely  directory,  and  no  consequence  is 
attached  to  a  deviation  from  its  direction.®^ 

In  the  case  wherein  this  was  announced  the  contro- 
versy was  over  the  possession  of  the  surface.  It  in- 
volved only  intralimital  rights,  and,  as  fully  explained 
in  preceding  sections,®^  this  class  of  rights  is  not  af- 
fected by  the  form  of  the  location,  so  long  as  the  area 
included  is  within  the  statutory  limit. 

At  all  events,  the  dictum  of  Judge  Field  and  the 
decision  of  the  supreme  court  of  California,  at  least  in 
so  far  as  it  applies  to  the  extralateral  rights,  were 
overruled  by  the  Horseshoe  case.^* 

The  requirement  of  the  statute  as  to  parallelism  does 
not  necessarily  imply  that  the  lines  should  be  drawn 

91  Ante,  §  365. 

»2  Horswell  v.  Euiz,  67  Cal.  Ill,  7  Pac.  197,  15  Morr.  Min.  Rep.  488. 

83  Ante,  §§  365,  552. 

84  So  held  in  Argonaut  M.  Co.  v.  Kennedy  M.  &  M.  Co.,  131  Cal.  15, 
23,  82  Am.  St,  Rep.  317,  63  Pac.  148,  151,  21  Morr.  Min.  Rep.  163. 


1303  PARALLELISM   OF  END-LINES  NECESSARY.  §  582 

on  the  surface  with  absohite  mathematical  precision. 
A  reasonable  compliance  with  the  law  is  all  tliat  is 
required.  A  substantial  parallelism  should  satisfy  the 
law. 

The  statute^^  in  definin^^  the  extent  of  the  extralat- 
eral  right  refers  to  locations  only,  and  does  not  in  terms 
mention  patents;  but,  of  course,  a  patent  is  but  the 
evidence  of  a  perfected  location.  A  right  conferred 
by  patent  cannot  be  defeated  by  showing  a  want  of 
parallelism  of  the  end-lines  of  the  claim  as  originally 
located.  The  location  will  be  conclusively  presumed 
to  have  been  made  in  the  form  described  in  the  patent." 

Conversely,  if  the  form  of  the  surface  boundaries, 
as  described  in  that  instrument,  taken  in  connection 
with  the  physical  facts  shown,  is  of  such  a  character 
as  to  prevent  the  exercise  of  the  extralateral  right,  the 
patentee  cannot  be  permitted  to  appeal  to  his  location 
as  originally  marked  to  control,  vary  or  modify  the 
terms  of  the  patent. 

The  term  "location,"  therefore,  as  found  in  this 
section  of  the  statutes,  is  intended  to  apply  to  the 
status  of  the  location  as  to  form  as  it  appears  at  the 
time  rights  asserted  under  it  are  brought  into  ques- 
tion. The  production  of  the  patent  simply  dispenses 
with  the  necessity  of  proving  the  antecedent  facts  cul- 
minating in  its  issuance — facts  that,  in  the  absence  of 
such  an  instrument,  would  have  to  be  proved  inde- 
pendently, such  as  discovery,  marking  of  the  bound- 
aries, and  performance  of  such  other  acts  as  may  be 
required  under  local  or  state  regulations  as  condi- 
tions precedent  to  the  completion  of  a  valid  location. 

S5  Rev.  Stats.,  §  2322;  17  Stats.  91. 

96  Doe  V.  Waterloo  M.  Co.,  54  Fed.  935,  940;  S.  C,  on  appeal,  82 
Fed.  45,  51,  27  C.  C.  A.  50,  19  Morr.  Min.  Rep.  1;  Golden  Reward  M. 
Co.  V.  Buxton  M.  Co.,  79  Fed.  868,  874;  post,  §  778. 


§  583  EXTRALATERAL   RIGHTS   UNDER  ACT    OP    1872.  130i 

The  term  "survey"  is  sometimes  found  in  the  decisions 
when  referring  to  the  exterior  form  of  a  location. 
This  refers,  of  course,  to  the  patent  survey,  the  field- 
notes  of  which  are  embodied  in  the  patent  as  ulti- 
mately issued. 

It  may  not  be  out  of  place  to  call  attention  to  the  fact 
that  in  the  absence  of  a  patent,  the  extent  of  the  extra- 
lateral  right  is  not  necessarily  to  be  determined  by  the 
lines  of  the  location  as  they  were  originally  established 
in  the  field.  If  a  locator  has  any  apprehension  as  to 
the  sufficiency  of  his  original  location,  there  is  no  rea- 
son why  he  should  not  be  permitted  to  modify  or 
amend  it,  if  it  can  be  accomplished  without  prejudice 
to  the  rights  of  others."  For  the  purpose  of  obtain- 
ing parallelism,  the  lines  may  be  at  least  drawn  in, 
so  that,  as  finally  surveyed  for  patent,  the  location  will 
be  perfected  in  strict  compliance  with  the  law.**^  We 
have  fully  discussed  the  circumstances  justifying  a 
change  of  boundaries  in  a  preceding  article,^'  and  the 
manner  in  which  such  changes  may  be  effected. 

§  583.  "Broad  lodes"— Apex  bisected  by  side-line 
common  to  two  locations. — It  sometimes  happens, 
owing  to  the  limited  surface  exposure  presented  to 
the  observation  of  the  prospector  and  the  lack  of  time 
or  opportunity  for  development  prior  to  the  comple- 
tion of  the  location,  he  is  unable  to  determine  the  width 
of  the  vein  or  lode,  and  so  places  the  lines  of  his  loca- 
tion as  to  include  only  a  part  of  the  width  of  the  apex, 
presenting  the  case  of  an  apex  bisected  by  a  side-line. 

97  Ante,  §  397, 

98  Doe  V.  Sanger,  83  Cal.  203,  214,  23  Pac.  365,  368;  Doe  v.  Waterloo 
M.  Co.,  54  Fed.  935,  940;  Tyler  v.  Sweeney,  54  Fed.  284,  292,  4  C.  C. 
A.  329;  Last  Chance  M.  Co.  v.  Tyler,  61  Fed.  557,  560,  9  C.  C.  A.  613; 
Philadelphia  M.  aaim  v.  Pride  of  the  West,  3  Copp's  L.  O,  82. 

99  §§  396-398. 


1305 


BROAD  LODES. 


§583 


A  subsequent  prospector  locates  a  claim  adjoining, 
adopting  the  bisecting  side-line  of  the  senior  locator 
as  a  common  boundary,  and  including  a  part  of  the 
apex  omitted  from  the  prior  location.  It  also  may 
happen,  owing  to  the  liberal  definitions  applied  by  the 
courts  to  the  terms  "vein"  or  "lode,"  ^"°  the  apex  sur- 
face may  be  wider  than  the  maximum  lateral  limits  of 
a  claim  allowed  under  the  law.  Cases  of  this  character 
are  not  likely  to  occur,  except  in  those  localities  where 
local  legislation  permits  only  narrow  surfaces, — e.  g., 
Colorado  and  North  Da- 
kota. We  may  illustrate 
not  only  possible  but  actual 
occurrences  which  have 
come  before  the  courts  for 
adjudication  by  the  use  of 
figures  58  and  59.  In  figure 
58,  the  junior  locator,  B, 
has  not  only  adopted  the 
side-line  of  the  senior  loca- 
tion, but  has  made  his  end- 
lines  practically  the  exten- 
sion of  those  of  the  prior  Figure  58. 
locator,  making  the  end-line  planes  of  the  two  loca- 
tions coincident.  In  figure  59,  the  junior  locator  has 
given  his  end-lines  a  different  direction  from  those  of 
the  senior.  What,  if  any,  are  the  extralateral  rights 
attaching  to  the  two  locations  in  the  instances  illus- 
trated? 

It  has  been  said  that  if  any  portion  of  the  apex  is 
included  within  the  lines  of  a  location,  such  a  location 
is  valid,^  at  least  as  to  all  intralimital  rights.  But  the 
extent  of  the  extralateral  right  may  depend  upon  the 

100  Ante,  §§  291,  296. 
1  Ante,  §  364. 


583 


EXTEALATERAL  RIGHTS   UNDER  ACT   OF    1872. 


1306 


physical  conditions, — e.  g.,  the  extent  of  the  apex 
within  the  claim. 

Another  consideration  is  self-evident.  The  extent 
of  the  rights  of  the  junior  locator  who  appropriates 
that  portion  of  the  apex  excluded  from  the  senior  loca- 
tion depends  to  a  great  degree  on  the  nature  and  extent 
of  the  right  flowing  from  the  senior  appropriation. 

The  decisions  of  the  courts,  so  far  as  they  deal  with 
the  question  under  present  consideration,   have  not 

a, ,6 


\ 


^' 


^r 


Figure  59. 
been  harmonious,  and  until  the  supreme  court  of  the 
United  States  finally  determined  it,  there  was  a  pro- 
nounced divergence  of  opinion.  As  the  principle  ulti- 
mately announced  has  been  the  result  of  what  may  be 
called  a  judicial  evolution,  it  is  expedient  to  review  the 


cases. 


Judge  Hallett  entertained  the  view  that  in  order  to 
be  entitled  to  the  extralateral  right,  a  locator  must 
include  within  his  surface  boundaries  the  entire  width 


1307  BROAD  LODES.  §  583 

of  the  apex.  This  ruling  was  made  in  the  case  of  Hall 
V.  Equator  Mining  Company,  to  which  we  have  hereto- 
fore alluded,  presenting  a  diagram  of  the  property  in 
controversy,^  and  noted  that  on  the  trial  of  the  case 
upon  its  merits,  it  presented  an  instance  of  one  lode 
with  part  of  its  width  in  one  location  and  part  in  the 
other. 

In  addition  to  the  decision  of  Judge  Hallett  upon  the 
motion  for  a  preliminary  injunction,  which  suggested 
but  did  not  deal  with  the  aspect  of  the  case  now  under 
consideration,  the  case  was  tried  three  times — the  first 
time  before  that  judge,  whose  decision  is  not  found  in 
any  of  the  reports. 

Carpenter's  "Mining  Code"'  contains  some  excerpts 
from  it,  and  Dr.  Raymond  gives  us  full  quotations  in 
his  "Law  of  the  Apex,"  from  which  we  quote  so  much 
as  will  illustrate  Judge  Hallett 's  views:— 

As  to  all  the  disputed  ground,  the  principal  ques- 
tion affecting  the  whole  lode  is,  whether  by  locating 
a  part  of  the  width  of  outcrop  the  whole  may  be 
taken.  Of  several  collateral  locations  on  the  course 
of  a  lode,  where  the  top  or  outcrop  is  of  sufficient 
breadth  to  admit  of  more  than  one,  are  not  all  of 
equal  dignity!  This  question  will  admit  of  but  one 
answer,  with  such  modifications  as  may  be  hereafter 
suggested.  The  act  of  1872  certainly  requires  a  loca- 
tion to  be  along  the  course  of  the  vein  and  to  include 
the  top  of  it,  and  it  is  believed  that  the  act  of  1866 
is  of  the  same  effect.  Defendants'  location  was 
made  under  the  act  of  1866,  and  probably  some  dis- 
cussion of  that  view  of  the  act  would  be  appropriate 
in  this  connection.  But  it  may  be  enough  to  say 
that  defendants  assumed  to  take  the  whole  lode  into 

a  Fig.  44,  §  558. 
8  3d  ed.,  p.  65. 


§  583  EXTRALATERAL  RIGHTS   UNDER  ACT    OF    1872.  1308 

their  location,  and  if  they  failed  to  get  the  whole, 
either  by  their  own  omission  or  because  of  some  re- 
strictive provision  of  the  local  law,  the  result  is  the 
same.  In  either  case  they  cannot  now  claim  more 
than  was  taken  by  the  location.  The  same  rule  is 
applicable  to  plaintiff's  location,  and  as  to  both  of 
them  it  is  no  answer  to  say  that  the  law  would  not 
admit  a  location  of  sufficient  width  to  take  the  whole 
lode.  If  the  law  is  illiberal,  it  is  not  for  that  reason 
the  less  controlling.  If,  however,  a  right  to  the  en- 
tire lode  cannot  be  asserted  under  a  location  cover- 
ing a  part  only  of  its  width,  as  seems  to  be  obvious, 
the  location  may  be  valid  for  the  part  described  in 
it.  If  it  is  on  the  top  of  the  lode,  it  is  within  the  act, 
and  so  it  ought  to  be  good  for  the  part  within  the 
lines  extended  downward  vertically,  if  for  no  more. 
....  And  thus  it  may  be  true  that  each  of  several 
locators  on  the  same  vein  or  lode  will  own  all  within 
his  lines  without  being  able  to  go  beyond  them.  For, 
as  to  his  right  to  go  into  other  territory,  he  can  only 
do  so  in  pursuit  of  a  lode  or  vein  that  has  its  top  or 
apex  wholly  in  his  own  ground,  and  having  but  a 
part  of  the  lode  in  his  territory  he  cannot  comply 
with  that  condition.  This  appears  to  be  a  clear  in- 
ference from  the  language  of  the  act.  The  right 
given  relates  to  veins,  lodes,  and  ledges  the  tops  of 
which  are  inside  the  surface  lines,  which  obviously 
means  the  whole,  and  not  a  part.  If,  then,  two  or 
more  collateral  locations  be  made  on  one  and  the 
same  vein,  and  the  vein  appear  to  be  homogeneous 
throughout  its  width,  we  are  authorized  to  say  that 
each  shall  be  confined  within  his  own  lines  drawn, 
down  vertically 

This  ruling  deprives  both  A  and  B  under  both  sets 
of  locations  shown  on  figures  58  and  59  of  all  extra- 
lateral  rights,  and  limits  each  to  the  vertical  boundaries 
of  their  respective  locations. 


1309 


BROAD  LODES. 


§583 


FiGUKE  60. 


Dr.  Raymond  illustrates  the  effect  of  this  rule  hy  a 
simple  geological  cross-section,  as  shown  in  figure  60, 
drawn  through  the  end-lines, 
1-2  and  2-3.  Dropping  a  ver- 
tical plane  through  the  com- 
mon side-line,  2-5,  leaves  but 
a  small  triangular  segment 
of  the  vein  to  A,  and  a  sim- 
ilar plant  drawn  through  the 
side-line,  3-4,  shows  the  ex- 
tent of  B's  rights  between 
the  two  planes. 

At   the   next   trial  of  the 
case  Justice  Miller  charged  the  jury  as  follows:— 

There  is  introduced,  both  by  plaintiffs  and  defend- 
ants, evidence  tending  to  prove  that  the  claims  of 
both  parties  are  located  on  the  same  vein  or  lode  of 
mineral-bearing  rock  in  place,  the  general  apex  or 
upper  surface  of  which  is  about  one  hundred  feet 
wide.''  If  the  jury  believe  this  to  be  true,  then  I 
instruct  you,  as  the  law  of  this  case,  that  plaintiffs, 
having  the  prior  title  from  the  United  States  to  that 
portion  of  this  lode  within  the  lines  of  their  patent, 
extended  vertically  downward  to  the  earth's  center, 
and  the  defendants  having  contested  plaintiffs'  right 
to  receive  a  patent  for  the  parts  of  the  lode  in  con- 
troversy, in  the  court  of  the  territory',  according  to 
the  act  of  congress  on  that  subject,  and  failed  in 
that  contest,  and  having  accepted  and  read  in  evi- 
dence a  patent  for  their  own  claim,  which  expressly 
excepts  out  of  its  granting  clause  the  interfering 
parts  in  plaintiffs'  said  patent,  the  law  of  the  case 
is  for  the  plaintiffs,  and  they  are  entitled  to  all  the 
mineral  found  within  the  side-lines  of  their  patent, 
extended  downward  vertically.^ 

*  The  claims  were  each  fifty  feet  wide. 
5  See  note,  11  Fed.  Cas.  No.  5931,  p.  225. 


§  583  EXTRALATERAL  RIGHTS   UNDER   ACT   OF    1872.  1310 

When  we  consider  that  the  defendants'  location  of 
the  Equator  was  prior  in  point  of  time  to  the  plaintiffs' 
Grand  Central,  if  the  defendants  could  lawfully  base  an 
extralateral  right  upon  the  part  of  the  apex  within  the 
Equator,  they  could  not  be  deprived  of  it  by  the  gov- 
ernment patenting  to  another  the  surface  overlying  the 
dip.  Asserted  underground  rights  are  not  the  subject 
of  adverse  claims.®  Such  controversies  are  confined 
to  surface  conflicts.  Justice  Miller's  views  are  in 
practical  accord  with  Judge  Hallett's. 

Mr.  Morrison,  in  the  earlier  edition  of  his  work,  ap- 
proved Judge  Hallett's  ruling,  which,  he  said,  had  been 
followed  by  the  trial  courts  in  Colorado/ 

The  court  of  appeals  of  Colorado,  in  the  case  of  Big 
Hatchet  Consol.  M.  Co.  v.  Colvin,^  said  that  the  right 
to  follow  a  vein  on  its  dip  into  territory  belonging  to 
another  is  dependent  upon  the  full  ownership  of  the 
apex.* 

A  case  somewhat  similar  to  the  Grand  Central 
Equator  controversy  came  before  the  supreme  court  of 
Utah  territory.'"  The  facts  found  by  the  trial  court, 
which  finding  was  accepted  by  the  appellate  tribunal, 
presented  a  case  where  the  first  locator  had  the  apex  of 
a  vein  entirely  within  the  surface  lines  of  his  claim  for 
a  portion  of  its  length,  and  the  remaining  portion 
partly  within  and  partly  without,  the  excluded  portion 
being  embraced  within  the  boundaries  of  a  coterminous 
junior  location. 

6  Champion  M.  Co.  v.  Cons.  Wyoming  M.  Co.,  75  Cal.  78,  83,  16 
Pac.  513,  514,  16  Morr.  Min.  Rep.  145. 

7  Morr.   Min.  Eights,   10th  ed.,   p.   136. 

8  19  Colo.  App.  405,  75  Pac.  605,  606. 

9  Messrs.  Morrison  &  De  Soto,  of  counsel  in  this  case,  inform  the 
author  that  on  the  argument  it  was  practically  conceded  that  in  order 
to  claim  dip  rights,  the  locator  must  have  the  entire  apex. 

10  Bullion,  Beck  &  Champion  M.  Co.  v.  Eureka  Hill  M.  Co.,  5  Utah, 
3,  11  Pac.  515,  15  Morr.  Min.  Eep.  449. 


1311  BROAD  LODES.  §  583 

The  majority  of  the  appellate  court  held  that  under 
the  act  of  1872,— 

The  discoverer  of  any  part  of  the  apex  gets  the 
right  to  its  entire  width,  despite  the  fact  that  a  por- 
tion of  the  width  may  be  outside  of  the  surface  side- 
lines of  his  claim,  extended  downward  vertically. 
While  he  has  no  right  to  the  extralateral  surface,  he 
has  a  right  to  the  extralateral  lode  beneath  the  sur- 
face." 

Judge  Boreman  dissented,  practically  accepting  the 
doctrine  of  Judge  Hallett  in  the  Equator  case. 

If  this  be  the  correct  rule  in  the  cases  illustrated  in 
figures  58  and  59,  A,  the  prior  locator,  would  have  the 
extralateral  right  within  his  extended  end-line  planes. 
B,  in  figure  58,  would  have  certainly  no  extralateral 
right  in  any  event,  as  his  end-line  planes  are  coincident 
with  A's.  With  reference  to  B's  rights  under  his  loca- 
tion shown  on  figure  59,  it  would  seem  that,  under  the 
Utah  rule,  there  could  be  but  one  extralateral  right,  and 
that  being  awarded  to  A,  there  was  nothing  left  for  B, 
although  his  end-line  planes  are  projected  at  different 
angles  from  those  of  A. 

The  case  of  Rose  v.  Richmond  Mining  Company'^ 
was  decided  by  the  supreme  court  of  Nevada  upon  the 
assumption  that  the  first  locator  took  the  whole  lode 
to  its  entire  width.  No  issue  was  raised  as  to  this 
point.  It  was  conceded  by  both  parties  to  the  litiga- 
tion. The  supreme  court  of  the  United  States,  in  its 
opinion  affirming  the  judgment,  gave  no  consideration 
whatever  to  the  subject.^^ 

Dr.  Raymond  refers  to  the  rulings  by  Judges  Rising 
and  Rives,  district  judges  in  Nevada,  as  supporting 

11  Id.,  11  Pac.  525. 

12  17  Nev.  25,  27  Pac.  1105,  1110. 

13  Richmond  M.  Co.  v.  Rose,  114  U.  S.  576,  5  Sup.  Ct.  Rep.  1055,  29 
L.  ed.  273. 


§  583  EXTRALATEBAL  RIGHTS   UNDER  ACT   OF    1872.  1312 

this  theory  as  to  extralateral  riglits  on  broad  lodes. 
He  undoubtedly  had  in  mind  the  Rose-Richmond  case, 
heretofore  referred  to. 

Without  doubt,  in  Nevada,  prior  to  the  act  of  1866, 
and  in  fact  after  that  act  had  been  passed,  locations 
were  made  of  the  vein  without  any  attempt  to  draw 
side-lines.  The  entire  Comstock  lode  was  located  in 
this  way,  it  being  popularly  conceded  that  the  locus  of 
the  east  wall  of  that  remarkable  zone  could  not  be  de- 
termined. 

The  circuit  court  of  appeals  for  the  ninth  circuit, 
however,  announced  a  rule  which  is  more  liberal  than 
that  found  in  any  of  the  prior  cases.  It  awards  extra- 
lateral  rights  to  both  locators  on  the  bisected  vein. 
Take,  for  example,  the  conditions  shown  on  figure  59. 
A,  being  prior  in  time,  takes  the  underground  segment 
lying  between  his  extended  end-line  planes  a-d-d'  and 
b-c-h.  B  takes  the  segment  c-f-f  and  g-g\  In  other 
words,  B's  extralateral  right  takes  effect  beyond  the 
plane  of  conflict  between  A's  end-line  planes  and  those 
of  B, — that  is,  beyond  the  plane  c-g. 

This  we  understand  to  be  the  effect  of  the  rule  an- 
nounced by  that  court  in  the  case  of  the  Empire  State- 
Idaho  M.  and  D.  Co.  v.  Bunker  Hill  and  Sullivan  M. 
and  C.  Co.^* 

The  facts  of  the  case,  as  then  understood  and  found 
by  the  court,  are  illustrated  by  a  diagram  accompany- 
ing the  opinion,  which  we  herewith  reproduce  (figure 
61). 

The  Empire  State  company  owned  the  Viola  and  San 
Carlos.  The  vein  was  broad,  but  precisely  how  broad 
was  not  determined. 

The  trial  court  found  the  apex  of  the  vein  to  be 
within  both  claims  substantially  as  indicated  on  the 

14  114  Fed.  417,  419,  52  C.  C.  A.  219,  22  Morr.  Min.  Eep.  104. 


1313 


BROAD  LODES. 


diagram.  The  vein  is  of  the  class  represented  in  cross- 
section  on  figure  7,  page  651,  of  this  treatise,  the  foot- 
wall  boundary  being  a  simple  fissure  wall  and  the 
hanging  boundarj^  an  indefinite  limit  of  mineralization. 

The  Viola  was  prior  in  point  of  time  to  the  San 
Carlos.  The  Bunker  Hill  company  owned  the  King,  a 
location  junior  in  point  of  time  to  both  the  others, 
covering  the  triangular  tract  lying  between  the  Tyler, 
Viola,  and  San  Carlos  end-lines. 

To  secure  this  triangular  and  theretofore  unappro- 
priated tract  containing  the  apex  to  the  extent  shown, 
the  locator  of  the  King  placed  his  north,  west  and  south 


2>. 


Figure  61. 
boundaries  over  and  upon  the  lines  of  the  Viola  and 
San  Carlos,  claiming  the  right  to  do  so  under  the  rule 


Lindley  on  M. — 83 


§  583  EXTRALATERAL  RIGHTS   UNDER  ACT   OP    1872.  1314 

announced  in  the  Del  Monte  case,  discussed  in  previous 
sections.^' 

The  controversy  arose  over  the  ownership  of  the  ore 
bodies  within  the  extended  end-line  planes  of  the  King. 
The  Bunker  Hill  company  contended  that  either  both 
the  San  Carlos  and  Viola  were  denied  the  extralateral 
right,  and  were  limited  to  vertical  planes  drawn 
through  the  surface  boundaries  (Judge  Hallett's  doc- 
trine), or  the  extralateral  right  pertained  to  the  Viola, 
whose  end-line  planes  did  not  conflict  with  the  King 
(the  Utah  rule).  Judge  James  H.  Beatty,  sitting  as 
circuit  judge,  upheld  the  latter  contention  and  awarded 
the  Bunker  Hill  judgment.^*  On  appeal  this  judgment 
was  reversed,  the  court  of  appeals  determining  that 
both  the  Viola  and  San  Carlos  had  extralateral  rights, 
the  latter  taking  effect  after  passing  beyond  the  plane  ' 
of  conflict  with  the  Viola,  represented  by  the  line  E-B 
on  the  diagram.  As  the  King  end-line  boundaries  con- 
flicted with  those  of  the  San  Carlos,  it  was  denied  the 
extralateral  right. 

It  would  appear,  from  reading  Judge  Hallett's  opin- 
ion in  the  Del  Monte  case,^^  that  a  broad  vein  with 
structural  conditions  similar  to  those  existing  in  the 
King- Viola-San  Carlos  case  was  involved,  the  footwall 
being  well  defined,  and  the  hanging-wall  a  matter  of 
serious  controversy.  Judge  Hallett,  in  the  application 
for  an  injunction  in  the  case  involving  the  extralateral 
right  of  the  New  York  as  against  the  Del  Monte  claim, 
thought  that  this  question  should  be  submitted  to  a 
jury,  and  therefore  he  did  not  undertake  to  determine 
either  the  fact  or  the  law  to  be  applied.  The  case  in- 
volving the  extralateral  right  of  the  Last  Chance  as 

16  §§  363,  363a. 

16  Bunker  Hill  &  Sullivan  M.  &  C.  Co.  v.  Empire  State-Idaho  M.  & 
D.  Co.,  106  Fed.  471,  474. 

17  Del  Monte  M.  &  M.  Co.  v.  New  York  &  Last  Chance  M.  Co,,  66 
Fed.  212. 


1315  BROAD  LODES.  §  583 

against  the  Del  Monte  was  presented  to  the  circuit 
court  of  appeals  upon  an  agreement  of  counsel  that  the 
course  of  the  footwall  as  marked  in  the  diagram  found 
in  the  record,  which  accompanies  the  opinion/^  should 
for  the  purposes  of  the  case  be  deemed  to  be  the  course 
of  the  apex. 

In  the  case  of  St.  Louis  Mining  &  M.  Co.  v.  Montana 
M.  Co.,"  the  circuit  court  of  appeals,  ninth  circuit, 
had  previous  to  its  decision  in  the  King- Viola-San  Car- 
los case  held  that  where  the  apex  of  the  vein  was  partly 
within  one  location  and  partly  in  the  other,  the  extra- 
lateral  right  was  with  the  prior  locator,  to  the  extent 
that  any  part  of  the  apex  was  within  the  prior  claim. 
But  the  facts  of  that  case  were  somewhat  different  from 
the  Viola-San  Carlos-King  case.  In  the  St.  Louis- 
Montana  case,  the  senior  locator  held  the  entire  apex 
of  a  secondarj^  vein  for  some  distance.  On  its  strike  it 
passed  out  of  a  side-line  common  to  two  claims.  As 
the  court  held  that  the  extralateral  right  to  the  second- 
ary  vein  was  to  be  defined  by  a  vertical  plane  parallel 
to  the  plane  of  the  end-line  crossed  by  the  original  or 
discovery  lode  at  the  point  where  the  secondary  vein 
passed  out  of  the  side-line,  the  question  to  be  deter- 
mined was  where  on  the  side-line  was  the  plane  to  be 
established, — where  the  hanging-wall  or  the  footwall 
cut  the  side-line?  The  court  fixed  the  footwall  as  the 
point,  this  being  the  place  where  the  senior  claim  lost 
its  longitudinal  right  on  the  vein.  It  was  not  strictly 
a  case  of  "split"  vein,  although  the  principle  seemed 
to  present  analogies  which  justified  its  application  to 
the  Viola-San  Carlos-King  case,  and  the  trial  court  in 
that  case  so  held.^° 

18  171  U.  S.  55,  58,  18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min. 
Kep.  370.     See,  also,  fig.  86,  post,  §  594. 

19  104  Fed.  664,  44  C.  C.  A.  120,  56  L.  R.  A.  725. 

20  Bunker  Hill  &  Sullivan  M.  &  C.  Co.  v.  Empire  State-Idaho  M.  & 
D.  Co.,  106  Fed.  471,  472. 


583 


EXTRAL.VTERAL  RIGHTS   UNDER  ACT   OF    1872. 


1316 


A  diagram  sliowing  the  facts  in  the  St.  Louis-Mon- 
tana case  appears  in  connection  with  the  discussion  of 
the  extralateral  right  as  to  veins  other  than  the  one 
upon  which  the  location  is  based.^^ 

The  rule  announced  by  the  circuit  court  of  appeals, 
ninth  circuit,  in  the  Viola-San  Carlos  case  was  followed 
by  that  court  in  subsequent  cases. ^^ 

The  case  of  United  States  Mining  Co.  v.  Lawson  ^^ 
involved  a  controversy  over  a  bisected  broad  lode  apex, 
which  may  be  illustrated  by  the  accompanying  dia- 
gram. 


'■'■'. 'I'l'.'Wii'.'.'-^^ 


'■'■'■'■'■'. 'I'r^r'i'-'.'i'i'i'i'A'i'i? 


I  III  -I  III   I  I   I  11  I  I 
r  r  I   I  .1  I   I   r  )^r 


rj^ 


aS 


^e^^^^ 


■  :iviu:.i;i;';i;i;';i;^ 


I  f  i\  f  I  I  I  I  r  I  I 


I  I  I  I  I  I  I  I  I  I 


ra^^s^^s 


^^^^^^^ 


!?fl 


II  111  I 


Figure  61a. 

21  Post,  §  594.  This  case  and  its  subsequent  history  will  be  dis- 
cussed when  we  reach  the  subject  of  extralateral  rights  on  secondary 
veins,  post,  §  594. 

22  Empire  State-Idaho  M.  &  D.  Co.  v.  Bunker  Hill  &  Sullivan  M.  & 
C.  Co.,  121  Fed.  973,  977,  58  C.  C.  A.  311,  22  Morr.  Min.  Rep.  560; 
Last  Chance  M.  Co.  v.  Bunker  Hill  &  S.  M.  &  C.  Co.,  131  Fed.  579,  588, 
66  C.  C.  A.  299;  certiorari  denied,  200  U.  S.  617,  26  Sup.  Ct.  Rep.  754, 
50  L.  ed.  622;  appeal  dismissed,  200  U.  S.  613,  26  Sup.  Ct.  Rep.  754, 
50  L.  ed.  620. 

23  134  Fed.  769,  67  C.  C.  A.  587. 


1317  BROAD  LODES.  §  583 

The  complainants  owned  the  Old  Jordan,  ^Nfoiintain 
Gem,  Jordan  Extension,  Grizzly,  Northern  Light  and 
Fairview,  and  the  defendants  owned  the  Kempton  and 
Ashland.  The  apex  of  the  ore-bearing  limestone  de- 
termined by  the  court  to  be  the  vein  is  longitudinally 
bisected  or  divided  by  the  Old  Jordan,  Mountain  Gem 
and  Kempton.  Priority  of  location  was  found  in 
favor  of  complainant  as  to  the  Old  Jordan  and  Moun- 
tain Gem.  In  awarding  the  extralateral  right  to  the 
prior  claims,  the  court  held  that — 

When  two  or  more  mining  claims  longitudinally 
bisect  or  divide  the  apex  of  a  vein,  the  senior  claim 
takes  the  entire  width  of  the  vein  on  its  dip,  if  it 
is  in  other  respects  so  located  as  to  give  a  right  to 
pursue  the  vein  downward  outside  of  the  side-lines. 
This  is  so  because  it  has  been  the  custom  among 
miners,  since  before  the  enactment  of  the  mining 
laws,  to  regard  and  treat  the  vein  as  a  unit,  and  in- 
divisible in  point  of  width  as  respects  the  right  to 
pursue  it  extralaterally  beneath  the  surface.^* 

The  supreme  court  of  the  United  States  affinned  the 
judgment  of  the  circuit  court  of  appeals,  expressly  in- 
dorsing the  views  of  the  court  above  quoted."  Both 
courts,  in  dealing  with  this  case,  cite  approvingly  the 
decisions  of  the  circuit  court  of  appeals,  ninth  circuit, 
heretofore  referred  to.  The  case  of  United  States 
Mining  Company  v.  Lawson  did  not  involve  the  ques- 
tion of  the  rights  of  a  junior  locator  holding  a  segment 
of  the  bisected  apex  to  pursue  the  vein  in  depth  after 
passing  beyond  the  place  of  conflict  with  the  extra- 
lateral  right  of  the  senior  claim.  The  exigency  of  the 
case  did  not  require  a  discussion  of  this  question. 

24  134  Fed.  769,  774,  67  C.  C.  A.  587. 

25  Lawson  v.  United  States  Min.  Co.,  207  U.  S.  1,  13,  28  Sup.  Ct. 
Eep.  15,  52  L.  ed.  65. 


§  583  EXTRALATERx\L  RIGHTS   UNDER  ACT   OF    1872.  1318 

In  support  of  the  doctrine  of  the  Viola-San  Carlos  as 
to  this,  however,  the  rules  governing  extralateral  rights 
in  cases  of  conflicting  or  interlocking  underground 
planes  discussed  in  subsequent  sections''  may  be 
plausibly  invoked  by  analogy. 

The  case  of  Wall  v.  United  States  Mining  Com- 
pany,-''^ tried  before  Judge  Marshall,  sitting  as  circuit 
judge  in  the  district  of  Utah,  involved  a  part  of  the 
same  lode  which  was  the  subject  of  litigation  in  the 
case  of  United  States  Mining  Company  v.  Lawson. 
The  facts  of  the  case  as  they  were  substantially  found 
by  the  court  are  illustrated  on  figure  61b. 


f'f^tomTic* 


Figure  61b. 

The  plaintiff  and  his  lessor  owned  the  Eed  Rover 
and  claimed  the  ownership  of  the  ore  bodies  in  dispute 
by  reason  of  their  ownership  of  the  surface.     The  de- 

26  §§  596,  609. 
26a  Unreported, 


1319  BROAD  LODES.  §  583 

fendants  claimed  under  the  Roman  Empire  and  other 
claims  covering  the  apex,  which  was  bisected  by  the 
boundary  lines  of  that  claim  and  the  Montana  and 
Columbia.  The  Roman  Empire  held  priority,  the 
Montana  being  second.  The  extralateral  right  was 
awarded  to  the  Roman  Empire,  the  extended  end-line 
planes  of  which  embraced  the  ore  bodies  in  dispute, 
the  court  holding  that  it  was  unnecessary  to  consider 
whether  the  defendant  takes  the  entire  vein  in  dispute 
by  virtue  of  the  ownership  of  the  Roman  Empire  and 
Montana  claims  or  whether,  as  to  a  part,  defendants 
must  rely  on  the  apex  in  the  Columbia  under  the  rule 
established  in  the  Viola-San  Carlos  case  heretofore  dis- 
cussed." The  court  said  that  there  was  no  reason  to 
doubt  the  correctness  of  the  Viola-San  Carlos  decision. 

Where  there  are  two  veins  within  a  lode,  a  condition 
which  frequently  arises,'*  each  vein  may  be  the  sub- 
ject of  an  independent  appropriation,  and  the  broad- 
lode  question  cannot  arise.  It  is  only  involved  where, 
as  suggested  by  Judge  Hallett,  the  lode  is  homogeneous 
throughout  its  width. 

Before  leaving  the  subject  of  "broad  lodes"  it  may 
be  well  to  call  attention  to  certain  classes  of  deposits 
which  in  their  occurrence  are  "broad,"  and  by  reason 
of  being  in  place  may  fall  within  the  definition  of 
"lodes,"  but  which  at  the  same  time  may  not  be  sus- 
ceptible of  being  carved  up  into  numerous  surface  loca- 
tions upon  which  extralateral  rights  may  be  predicated. 
We  may  take,  for  example,  what  are  familiarly  called 
the  "copper  poii^hyries,"  zones  of  impregnation,  re- 
placement, or  secondarj^  enrichment  caused  by  denuda- 
tion and   leaching.     These   zones   cover  large   areas, 

27  114  Fed.  417,  52  C.  C.  A.  219,  22  Morr.  Min.  Rep.  104. 

28  United  States  v.  Iron  S.  M.  Co.,  128  U.  S.  673,  680,  9  Sup.  Ct. 
Rep.  195,  32  L.  ed.  571;  ante,  §  290. 


§  583  EXTRALATERAL  RIGHTS   UNDER  ACT   OF    1872.  1320 

sometimes  a  mile  or  more  in  length  by  a  width  of  a 
thousand  or  more  feet.  At  times  they  are  surrounded 
by  rocks  of  a  different  character.  But  their  bound- 
aries, so  far  as  mineralization  is  concerned,  are,  gen- 
erally speaking,  commercial  ones,  on  all  sides,  top  and 
bottom.  Zones  of  this  character  have  no  dip  or  down- 
ward course,  in  a  legal  sense.  Nor  have  they  an  apex, 
except,  perhaps,  theoretically,  such  as  the  land  depart- 
ment for  executive  purposes  establishes  in  the  case  of 
blanket  deposits.^^  The  mineral-bearing  rock  is  homo- 
geneous throughout,  it  is  true.  But  to  apply  the  extra- 
lateral  right  doctrine  of  bisected  apex  and  "broad 
lodes"  to  this  character  of  deposits  would  be  an  ab- 
surdity. 

As  was  said  by  the  supreme  court  of  Utah  in  the 
case  of  Grand  Central  Min.  Co.  v.  Mammoth  M.  Co.:^° — 

What  constitutes  a  discovery  that  will  validate  a 
location  is  a  very  different  thing  from  what  con- 
stitutes an  apex,  to  which  attaches  the  statutory 
right  to  invade  the  possession  of  and  appropriate  the 
property  which  is  presumed  to  belong  to  an  adjoin- 
ing owner.^^ 

For  the  purpose  of  sustaining  the  validity  of  a  loca- 
tion or  patent  of  land  containing  this  class  of  deposits, 
an  apex  may  be  presumed.  But  it  does  not  follow 
that  an  extralateral  right  may  be  predicated  upon  the 
presumption.  In  most  of  the  sulphide  copper  districts 
vertical  planes  have  been  established  by  agreement  or 

29  Homestead  Mining  Company,  29  L.  D.  689;  Jack  Pot  Lode  Min- 
ing Claim,  34  L.  D.  470;   Belligerent  and  Other  Lodes,  35  L.  D.  22. 

30  29  Utah,  490,  83  Pac.  648,  677. 

31  The  supreme  court  of  the  United  States,  without  intimating  agree- 
ment or  disagreement  with  this  statement,  held  that  it  was  not  neces- 
dary  to  the  decision.  Mammoth  M.  Co.  v.  Grand  Central  M.  Co.,  213 
U.  S.  72,  77,  29  Sup.  Ct.  Rep.  413,  53  L.  ed.  702.  See,  also,  Goldea 
V.  Murphy,  31  Nev.  395,  103  Pac.  394,  405,  105  Pac.  99. 


1321  VEIN   CROSSING   SIDE-LIXE.  §  584 

commoii  understanding.  If,  teclinicallv  speaking,  an 
extralateral  riglit  could  be  legally  predicated  in  this 
class  of  deposits,  the  "common  law"  of  the  district 
would  undoubtedly  follow  the  precedent  set  by  Lead- 
ville  in  dealing  with  the  blanket  deposits  of  that 
region,  resulting  practically  in  the  denial  of  extra- 
lateral  rights.^" 

§  584.  Vein  entering  and  departing  through  the 
same  side-line. — In  the  first  edition  of  this  treatise,  the 
author  was  impressed  with  the  view  that  under  no  cir- 
cumstances could  there  be  any  extralateral  right  at- 
taching to  a  location  ^^ 
where  the  vein  on  its 
course  enters  and  de- 
parts through  the  same 
side-line  as  indicated  on 
figure  62. 

The  liberal  spirit  ex- 
hibited by  the  courts  in 
recent  years  in  inter- 
preting     the      mining 

laws,  and  the  manifest  Figure  62. 

tendency  to  uphold  the 
extralateral  right  wherever  it  can  be  done  without 
violence  to  the  letter  or  obvious  intent  of  the  law,  in- 
duces us  to  refrain  from  making  any  dogmatic  asser- 
tions as  to  the  extralateral  right  which  may  or  may 
not  be  awarded  to  a  location  of  the  class  under  con- 
sideration. If  we  are  to  consider  solely  the  avowed 
object  of  the  statute  so  frequently  announced  by  the 
courts,  that  a  locator  should  have  as  much  of  the  vein 
underneath  the  surface  as  he  has  apex  within  the  sur- 

32  For  discussion  of  the  Leadville  cases,  see  ante,  §  311. 


^ 


§  584  EXTRALATERAL  RIGHTS   UNDER  ACT   OP    1872.  1322 

face,  this  object  would  be  satisfied  by  constructing 
planes  parallel  to  tlie  lines  2-3  and  1-4  at  the  points  of 
entrance  and  departure,  w  and  ij  resulting  in  the  end- 
line  planes  w-x  and  y-z.     The  supreme  court  of  Colo- 
rado gives  expression  to  this  principle  and  strongly 
intimates,  at  least  in  cases  of  patented  claims,  that  the 
end-lines  of  the  location  as  fixed  by  the  locator  and 
patented  should  control  the  extralateral  right  on  all 
veins  and  under  all  circumstances.''     Nevertheless  we 
are  admonished  that  end-lines  are  not  those  necessarily 
so  called  by  the  locator.     The  legal  end-lines  are  those 
crossed  by  the  lode,  whether  so  intended  by  the  locator 
or  not.'*     In  this  aspect  of  the  situation,  there  would 
be  no  warrant  for  adopting  planes  parallel  to  2-3  and 
1-4,  as  the  lode  crosses  neither  of  them.     And  yet  the 
lines  1-2  and  3-4,  located  as  side-lines  for  their  entire 
length,  except  at  or  near  the  points  of  crossing,  run 
on  each  side  of  the  course  of  the  vein.     The  equitable 
rule  contended  for  by  Chief  Justice  Waite  and  Justice 
Bradley  in  the  Horseshoe  case,  heretofore  noted,''— 
that  is,  the  application  of  end-line  planes  crosswise 
of  the  lode,  applied  at  the  points  of  entrance  and  de- 
parture,— would  in  the  case  illustrated  produce  the 
planes  w-x  and  y-z  (figure  62),  practically  the  same  re- 
sult as  would  flow  from  the  application  of  planes  par- 
allel to  the  course  of  the  lines  which  the  locator  called 
end-lines.     But,  as  we  have  seen,  the  majority  of  the 

33  Ajax  M.  Co.  V.  Hilkey,  31  Colo.  131,  102  Am.  St.  Kep.  23,  72  Pac. 
447,  450,  62  L.  R.  A.  555,  22  Morr.  Min.  Rep.  585. 

34  Walrath   v.   Champion   M.   Co.,   171   U.   S.   293,   307,    18    Sup.    Ct. 
Rep.  909,  43  L.  eel.  170. 

86  Ante,  §  582,  p.  981. 


1323 


\t:in  crossing  side-lixe. 


§584 


court  in  that  case  con- 
demned this  method  of 
equitable  adjustment. 

The  application  of 
the  end-line  planes  iv-x 
and  y-z  (figure  62) 
would  also  apparently 
fall  within  the  sanction 
of  the  rule  suggested 
by  Judge  Hawley,  to 
be  noted  more  critically 
in  a  subsequent  section,^^ 
trated    by   reference   to 


Figure  63. 


His  suggestion  may  be  illus- 
figure   63.     Said    the   judge 
(bracketed  remarks  are  ours) : — 

Let  us  suppose  a  location  made  under  the  act  of 
1872  in  the  form  of  a  parallelogram  fifteen  hundred 
feet  in  length  and  six  hundred  feet  in  width;  that 
the  lode  enters  one  of  the  side-lines  within  five  feet 
of  one  of  the  end-lines  of  the  location;  that  it  then 
continues  upon  its  strike  nearly  parallel  with  the 
side-lines  until  it  comes  within  five  feet  of  the  other 
end-line,  and  then  changes  its  course  so  as  to  cross 
the  other  side-line.  This  lode  does  not  pass  through 
either  end-line  [so  called  by  the  locator]  yet  under 
the  rule  announced  in  the  Tyler  cases  [vein  crossing 
one  end-line  and  a  side-line]^'  the  locator  would  be 
entitled  to  fourteen  hundred  and  ninety  feet  length- 
wise upon  the  lode  and  to  follow  it  that  distance 
upon  its  dip  vertically  downward,  as  expressed  in 
the  statute.  I  am  of  the  opinion  that  in  such  cases 
the  statute  is  definite  enough  and  clear  enough  to 
make  the  end-lines  parallel  at  the  point  of  the  en- 
trance and  departure  of  the  lode  across  the  side-lines, 
and  to  draw  them  crosswise  of  the  general  course 


36  Post,  §  586 — Vein  crossing  two  opposite  parallel  side-lines. 

37  Post,  §  591. 


I  584  EXTRALATERAL  RIGHTS   UNDER   ACT   OF   1872.  1324 

of  the  lode  within  the  limits  of  the  surface  location, 
and  that  this  should  always  be  done  so  as  to  give 
to  the  locator  just  what  the  statute  intended  he 
should  have,  instead  of  depriving  him  of  all  extra- 
lateral  rights  because,  by  some  mistake  or  oversight 
in  marking  his  lines,  or  by  lack  of  judgment  or 
knowledge  as  to  where  the  lode  ran,  he  had  failed 
to  get  his  end-lines  exactly  parallel  with  the  lode, 
and  has  marked  his  end-lines  at  a  point  beyond 
where  the  lode  was  found  to  exist  upon  its  strike 
within  the  surface  of  his  location.^^ 

The  supreme  court  of  Colorado  criticises  this  view 
as  introducing  a  feature  of  uncertainty  in  mining  titles 
and  that  it  is  in  irreconcilable  conflict  with  the  decision 
of  the  supreme  court  of  the  United  States  in  the  Amy  & 
Silversmith  case/^ 

Judge  Hawley's  views  would,  in  the  case  illustrated 
in  figure  63,  result  in  the  constructed  end-line  planes 
x-y-z  and  v-w.  If  this  should  be  accepted  as  the  cor- 
rect rule,  there  is  no  reason  why  the  same  doctrine 
should  not  be  applied  to  the  case  illustrated  on  figure 
62,  giving  the  end-line  planes  iv-x  and  y-z. 

It  would  seem  that  if  the  apex  should  be  found  en- 
tirely within  the  location,  breaking  off  at  both  ends, 
without  crossing  either  end  or  side  lines,  the  extra- 
lateral  right  would  be  upheld." 

But  the  embarrassment  surrounding  the  application 
of  Judge  Hawley's  views  to  the  hypothetical  case 
under  consideration  is  manifest.  He  adopts  the  views 
of  Chief  Justice  Bradley  in  his  dissenting  opinion  in 

38  Cons.  Wyoming  M.  Co.  v.  Champion  M.  Co.,  63  Fed.  540,  547,  18 
Morr.  Min.  Rep.  113. 

39  Catron  v.  Old,  23  Colo.  433,  58  Am.  St.  Rep.  256,  48  Pae.  687, 
689,  18  Morr.  Min.  Rep.  569.  See,  also,  Ajax  G.  M.  Co.  v.  Hilkey,  31 
Colo.  131,  102  Am.  St.  Rep.  23,  72  Pac.  447,  450,  62  L.  R.  A.  555,  22 
Morr.   Min.   Rep.   585,  where  this  criticism   is  explained. 

40  Post,  §  592. 


1325  VEIN    CROSSING    SIDE-LINE.  §  584 

the  Horseshoe  case,  heretofore  referred  to,  and  uses 
his  precise  language  in  defining  the  direction,  and 
points  where  the  planes  are  to  be  established.  The  dif- 
ference between  the  views  of  the  majority  and  minority 
of  the  court  in  that  case  are  emphasized  by  the  later 
opinion  of  the  same  court  in  the  Del  Monte  case, 
wherein  the  court,  after  quoting  the  dissenting  opinion 
in  the  Horseshoe  case  and  stating  the  result  reached 
by  the  majority  in  that  case,  said: — 

In  other  words,  the  court  took  the  location  as  made 
on  the  surface  by  the  loc;itor,  determined  from  that 
what  were  the  end-lines,  and  made  those  surface 
lines  controlling  upon  his  rights,  and  rejected  the 
contention  that  it  was  proper  for  the  court  to  ignore 
the  surface  location  and  create  for  the  locator  a  new 
location  whose  end-lines  should  be  crosswise  of  the 
general  course  of  the  vein  as  finally  determined  by 
explorations." 

In  speaking  of  certain  proposed  equitable  solutions 
of  some  of  the  extralateral-right  problems,  and  point- 
ing out  that  their  proper  determination  depends  upon 
the  construction  of  the  statute,  and  not  upon  equi- 
table principles,  the  court  said: — 

We  make  these  observations  because  we  find  in 
some  of  the  opinions  assertions  by  the  writers  that 
they  have  devised  rules  which  will  work  out  equi- 
table solutions  of  all  difficulties.  Perhaps  those 
rules  may  have  all  the  virtues  which  are  claimed  for 
them,  and,  if  so,  it  were  well  if  congress  could  be 
persuaded  to  enact  them  into  a  statute;  but  be  that 
as  it  may,  the  question  in  the  courts  is  not  what  is 
equity  but  what  saith  the  statute." 

41  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  &  M.  Co.,  171  U.  S.  55, 
69,  18  Sup.  Ct.  Eep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Bep.  370.  See 
Daggett  V.  Yreka  M.  &  M.  Co.,  149  Cal.  357,  86  Pac.  968,  974. 

42  These  expressions  were  undoubtedly  called  forth  by  the  famous 
and  somewhat  caustic  opinion  of  the  late  Judge  De  Witt  in  the   case 


§  564  EXTRALATERAL  BIGHTS   UNDER  ACT   OF   1872.  1326 

When  we  consult  the  adjudicated  cases  we  find  that 
the  questions  suggested  by  figure  62  have  received  but 
little  attention.  But  if  we  may  consider  the  general 
statements  and  phrases  employed  by  the  courts  in 
reaching  results  in  other  and  somewhat  cognate  situ- 
ations,— e.  g.,  the  case  where  a  vein  crosses  two  parallel 
side-lines,*^  or  where  it  enters  one  end-line  and  passes 
out  through  a  side-line,**  or  when  it  crosses  one  end- 
line  and  terminates  within  the  claim  without  reaching 
the  other,  or  where  the  apex  is  entirely  within  the  loca- 
tion but  crossing  none  of  its  boundaries,*®  and  the  ap- 
plication of  end-line  planes  in  cases  of  secondary 
veins  *® — there  is  something  to  encourage  the  belief 
that  when  the  question  discussed  in  this  section  con- 
fronts the  supreme  court  of  the  United  States,  it  may 
see  its  way  clear  to  apply  some  rule  of  construction 
which  will  award  an  extralateral  right  in  the  class  of 
cases  under  present  consideration. 

A  case  analogous  in  principle  to  that  shown  in  figure 
62  was  considered  by  the  supreme  court  of  Colorado.*^ 

The  controversy  arose  out  of  the  following  state  of 
facts,  which  may  be  readily  understood  by  reference 
to  figure  64,  a  reproduction  of  the  diagram  accompany- 
ing the  opinion  of  the  court. 

Plaintiff  owned  the  Smuggler,  defendants  the  Ful- 
ton and  Mendota  claims.     The  dotted  line  shows  the 

of  Fitzgerald  v,  Clark,  17  Mont.  100,  52  Am.  St.  Rep.  665,  42  Pac. 
273,  30  L.  R.  A.  803,  the  judgment  in  Tvhich  was  affirmed  by  the 
supreme  court  of  the  United  States,  following  the  Del  Monte  case,  171 
U.  S.  92,  18  Sup.  Ct.  Rep.  895,  43  L.  ed,  87,  19  Morr.  Min.  Rep.  370, 
sub.  nom.  Clark  v.  Fitzgerald. 

43  Post,  §§  586,  587,  588. 

**  Post,  §  591, 

*»  Post,  §  592. 

"  Post,  §§  593,  594. 

47  Catron  v.  Old,  23  Colo.  433,  58  Am.  St.  Rep.  256,  48  Pac.  687,  18 
Morr.  Min.  Rep.  569. 


1327 


VEIN    CROSSING    SIDE-LINE. 


§584 


apex  through  the  claims.  The  dip  is  to  the  south.  All 
the  properties  were  patented,  and  there  was  no  surface 
conflict  involved.  Defendants,  in  following  the  vein 
on  its  course  downward,  penetrated  underneath  the 
Smuggler  surface  and  had  extracted  ore  from  the  vein, 
the  point  of  the  alleged  trespass  being  designated  on 
the  diagram  by  the  letter  A.  The  defendants  justified 
their  presence  underneath  the  Smuggler  surface  by 
asserting  ownership  of  the  apex  in  the  Fulton  ground 
and  the  right  to  pursue  the  vein  in  depth  by  reason  of 
such  apex  ownership.  The  court  below  sustained  the 
contention  of  the  defendants.    Hence  the  appeal. 


Figure  64. 

The  appellate  court,  after  reviewing  most  of  the  end- 
line  cases  to  be  hereafter  noted,  reversed  the  judgment, 
thus  expressing  its  views : — 

In  the  case  at  bar,  no  part  of  the  Fulton  vein  runs 
parallel  or  nearly  parallel  with  the  side-linos  of  that 
claim,  as  staked  upon  the  surface.  The  United 
States  supreme  court  has  said  that  if  the  locator  of 
a  mining  claim  mistakes  the  direction  of  his  vein, 
and  locates  accordingly,  the  courts  have  no  power 
to  make  a  new  location  for  him,  but  must  deteTmine 
his  rights  with  reference  to  the  location  actually 
made.  Developments  subsequent  to  the  location  of 
the  Fulton  disclose  that  the  claim  as  located  con- 


584  EXTRALATERAL   RIGHTS  UNDER  ACT   OF    1872. 


1328 


tains  very  little  of  the  apex  of  the  vein,  and  such  as 
it  does  contain  does  not  cross  either  end-line,  and 
does  not  run  parallel  or  nearly  parallel  to  the  side- 
lines; so  that  in  no  aspect  of  the  law  can  the  Fulton 
be  allowed  extralateral  rights  by  reason  of  the  apex 
of  the  vein.** 

It  does  not  seem  possible  to  assail  this  ruling  of  the 
supreme  court  of  Colorado,  or  to  concede  any  extra- 
lateral  right  to  the  Fulton  claim  upon  the  facts  pre- 
sented, without  resorting  to  the  equitable  doctrine 
hereinbefore  referred  to  as  having  been  repudiated  by 
the  supreme  court  of  the  United  States. 

It  has  been  said,  however,  by  a  recent  writer  *®  that 
the  doctrine  of  this  case  has  been  repudiated  by  the 


Figure  65. 
circuit  court  of  appeals,  ninth  circuit,  in  the  case  of  St. 
Louis  M.  &  M.  Co.  V.  Montana  M.  Co.,  Ltd.,'°  the  facts 
of  which  may  be  outlined  by  reference  to  figure  65. 

48  Id.,  23  Colo.  433,  58  Am.  St.  Eep.  256,  48  Pae.  687,  690. 

49  "A  Problem  of  Mining  Law,"  Harvard  Law  Review,  vol.  xvi,  No.  2 
(Dee.  1902),  pp.  94,  101. 

50  102  Fed.  430,  104  Fed.  664,  44  C.  C.  A.  120,  56  L.  R.  A.  725. 


1329  VEIN    CROSSING    SIDE-LINE.  §  584 

The  St.  Louis  company  owned  the  St.  Louis  claim, 
for  which  a  patent  had  been  issued,  based  upon  the 
discovery  of  the  original  or  discover}^  vein.  The  end- 
lines  of  the  claim  were  parallel,  were  crossed  b}^  the 
lode,  and  the  extralateral  right  on  the  discovery  vein, 
under  this  state  of  facts,"**  must  be  assumed.  Subse- 
quently another  vein,  marked  on  the  diagram  "sec- 
ondary vein,"  was  discovered  crossing  a  side-line  in 
a  similar  manner  as  appeared  in  the  Colorado  case. 
Both  veins  dipped  in  the  same  direction,  as  indicated 
by  the  arrows.  The  Montana  company  owned  the 
Nine-Hour  claim.  The  ore  bodies  in  controversy  were 
on  the  secondary  vein  underneath  the  surface  of  that 
claim,  at  the  place  indicated  by  the  letter  X. 

The  court  awarded  the  extralateral  right  on  the  sec- 
ondary vein  to  the  St.  Louis  company  by  applying 
planes  parallel  to  the  plane  of  the  end-line  on  the  dis- 
covery lode,  at  the  points  where  the  footwall  of  the 
vein  crossed  the  side-line  resulting  in  the  planes  a-b 
and  c-d,  awarding  the  ore  bodies  in  dispute  to  the  St. 
Louis.  The  court  supported  its  ruling  in  this  behalf 
by  the  application  of  the  doctrine  previously  an- 
nounced by  it  in  another  case  that  "Where  the  end- 
lines  of  a  mining  claim  are  once  fixed,  they  bound  the 
extralateral  rights  to  all  the  lodes  that  are  thereafter 
found  within  the  surface  lines  of  the  location,""  which 
doctrine  has  received  the  express  sanction  of  the  su- 
preme court  of  the  United  States." 

Judge  Ross  dissented  in  the  St.  Louis-Montana  case, 
and  expressed  himself  as  in  favor  of  a  rehearing,  for 

51  See  statement  of  facts,  104  Fed.  665,  44  C.  C.  A.  120,  56  L.  R.  A. 
725. 

62  Walrath  v.  Champion  M.  Co.,  72  Fed.  978,  979,  19  C.  C.  A.  323. 

63  Walrath  v.  Champion  M.  Co.,  171  U.  S.  293,  308,  18  Sup.  Ct,  Rep. 
909,  43  L.  ed.  170. 

Lindley  on  M. — 84 


§  584  EXTRALATERAL  RIGHTS   UNDER  ACT   OF   1872.  1330 

the  principal  reason  that  the  question  here  discussed 
was  not  properly  presented  for  decision/* 

The  case  was  taken  on  writ  of  error  to  the  supreme 
court  of  the  United  States,  but  the  writ  was  dismissed 
upon  the  ground  that  the  judgment  of  the  circuit  court 
of  appeals  was  not  a  final  one." 

At  a  later  date,  however,  after  a  retrial  in  the  lower 
court  and  decision  by  the  circuit  court  of  appeals  sus- 
taining, as  the  "law  of  the  case,"  the  views  hereinbefore 
stated,"®  the  case  reached  the  supreme  court  of  the 
United  States,  which  tribunal  reversed  the  circuit  court 
of  appeals  without  specifically  passing  upon  the  ques- 
tion here  involved."  In  the  last  decision  of  the  circuit 
court  of  appeals  in  this  litigation  "  it  is  said  that  its 
ruling  as  to  the  extralateral  right  had  been  affirmed  by 
the  supreme  court  of  the  United  States  in  its  opinion 
reversing  the  first  decision  of  the  court  of  appeals." 
If  this  be  true,  it  is  only  by  inference. 

The  distinction  between  the  Colorado  case  and  the 
St.  Louis-Montana  case  is  apparent.  In  the  Colorado 
case  the  end-lines  had  not  been  "fixed";  there  was  no 
line  crossed  by  any  lode  except  the  side-line,  and  none 
which  possessed  the  attributes  of  a  legal  end-line  the 
planes  of  which  could  be  applied  to  the  side-line  under 
any  recognized  rule.  The  vein  crossing  the  side-line 
in  the  Colorado  case  was  the  discovery  vein.    We  are 

54  104  Fed.  669,  44  C.  C.  A.  120,  56  L.  R.  A.  725;  Iron  S.  M.  Co.  v. 
Elgin  M.  Co.,  118  U.  S.  196,  198,  6  Sup.  Ct.  Rep.  1177,  30  L.  ed.  98,  15 
Morr.  Min.  Rep.  641. 

55  Montana  M.  Co.  v.  St.  Louis  etc.  M.  Co.,  186  U.  S.  24,  22  Sup.  Ct. 
Rep.  744,  46  L.  ed.  1039. 

66  147  Fed.  897,  78  C.  C.  A.  33. 

57  204  U.  S.  204,  27  Sup.  Ct.  Rep.  254,  51  L.  ed.  444. 

68  Montana  M.  Co.  v.  St.  Louis  M.  &  M.  Co.,  183  Fed.  51,  61,  105 
C.  C.  A.  343. 

69  204  U.  S.  204,  27  Sup.  Ct.  Rep.  254,  51  L.  ed.  444. 


1331  THE  IDEAL,  LODE.  §  585 

hardly  prepared  to  admit  that  the  circuit  court  of  ap- 
peals has  necessarily  disputed  the  doctrine  of  Catron 
V.  Old,  a  case  which  it  neither  cited  nor  referred  to. 

There  are  several  difficulties  suggested  arising  out 
of  the  facts  appearing  in  the  St.  Louis-Montana  case 
which  will  be  reserved  for  future  discussion.®" 

§  585.  The  extralateral  right  applied  to  the  ideal 
lode. — We  have  in  preceding  sections  given  our  concep- 
tion of  the  ideal  lode,®^  and  have  illustrated  what  we 
understand  to  be  the  highest  tjj)e  of  a  location  embra- 
cing it,®^  one  which  confers  upon  the  possessor  the 
greatest  property  right  which  may  be  acquired  under 
the  mining  laws.  With  this  ideal  lode  in  position 
within  the  boundaries  of  such  a  location,  if  we  may 
assume  that  the  vein  in  its  descent  into  the  earth  to  an 
indefinite  depth  is  continuous,  that  its  identity  is  un- 
questioned, and  that  there  are  no  natural  or  legal  ob- 
stacles intervening,  we  have  presented  a  standard  with 
which  all  cases  of  all  classes  may  be  compared  and 
analyzed.  It  is  upon  the  existence  of  such  a  theoret- 
ical lode  and  hypothetical  location  that  the  existing 
laws  were  framed. 

As  Dr.  Raymond  facetiously  remarked, — 

If  all  mining  properties  presented  this  beautiful 
simplicity  of  structure,  and  all  mining  locators  ex- 
hibited a  corresponding  simplicity  of  purpose,  the 
application  of  the  law  would  be  easy.  But  the 
naivete  of  the  statute  fares  badly  between  the  freaks 
of  nature  and  the  tricks  of  man.®^ 

We  need  devote  no  time  to  the  consideration  of  extra- 
lateral  rights  flowing  from  ideal  locations  embracing 

•0  Post,  §  593. 
61  Ante,  §  309. 
•2  Ante,  §  360. 
«3  "Law  of  the  Apex." 


§  586  EXTRALATERAL  RIGHTS   UNDER  ACT   OF   1872.  1332 

ideal  lodes.  This  right  may  be  curtailed  or  inter- 
rupted by  underground  conflicts  with  prior  appro- 
priators  of  other  segments  of  the  same  vein,  or  by 
encountering  a  vertical  bounding  plane  of  some  prior 
grant,  out  of  which  the  underlying  vein  was  not  re- 
served, or  its  continuity  may  be  broken  and  its  iden- 
tity lost.  But  with  these  subjects  we  shall  deal  later. 
Eliminating  these  elements  from  present  consideration, 
the  possessor  of  the  ideal  lode,  ideally  located,  has 
the  same  length  on  the  vein  throughout  its  entire  depth 
as  he  has  included  within  his  boundaries  at  the  sur- 
face, and  this  was  the  unquestionable  intent  of  the 
law,  in  providing  that  the  end-lines  should  be  parallel. 
To  this  extent  the  locator  becomes  the  owner  of  the 
vein.     His  estate  therein  is  that  of  a  fee. 

§  586.  Vein  crossing  two  parallel  side-lines — The 
Flagstaff  case. — One  of  the  most  frequent  disappoint- 
ments which  fall  to  the  lot  of  the  lode  locator  arises 
from  his  mistaking  the  course  of  his  vein,  and  con- 
structing his  location  across  instead  of  along  it.  The 
first  instance  of  this  which  was  brought  to  the  atten- 
tion of  the  supreme  court  of  the  United  States  arose 
in  the  Flagstaff  case,  in  Utah,  and  involved  the  con- 
struction of  a  patent  issued  under  the  act  of  1866. 
For  the  first  time  the  miner  was  brought  to  a  realizing 
sense  that  a  United  States  patent  issued  under  that  act 
did  not  confirm  to  him  everything  which  he  expected 
and  theretofore  had  claimed.  Its  "ironclad  potency" 
shattered  his  early  idols,  and  there  was  a  rude  awaken- 
ing to  a  new  order  of  things.  After  having  fixed  his 
location  on  the  surface,  filed  his  diagram,  and  received 
his  patent,  he  learned  that  his  rights  to  the  lode  were 
to  be  determined  and  measured  by  the  boundaries  de- 
fined therein.     He  could  no  longer  follow  his  lode  on 


1333 


VEIN  CROSSING  TWO   PARALLEL   SIDE-LINES. 


S586 


its  course  whithersoever  it  might  run,  regardless  of 
lines,  stakes,  and  monuments.  He  could  only  take  so 
much  on  the  strike  of  the  vein  as  was  included  within 
his  patented  lines.  What  was  excluded  became  the 
subject  of  appropriation  by  the  next  comer. 

In  a  preceding  section  ^*  we  have  presented  in  out- 
line a  diagram  of  the  property  involved  in  the  Flag- 
?        4 


Figure  ^^. 

staff  case,  for  the  purpose  of  illustrating  this  principle. 
As  this  case  was  the  forerunner  of  several  others, — a 
mold  into  which  others  were  ultimately  cast, — it  will 


64  Ante,  §  60. 


§  586  EXTRALATERAL  RIGHTS   UNDER  ACT   OF   1872.  1331 

not  be  out  of  place  to  present  a  diagram  somewhat 
more  elaborate  in  design  tban  tbat  appearing  in  the 
historical  portion  of  this  treatise. 

Figure  66  shows  the  surface  lines,  the  course  of  the 
outcrop  or  apex  through  the  Titus  and  Flagstaff,  and 
in  horizontal  projection  the  nature  and  extent  of  the 
latter 's  underground  workings.  The  alleged  trespass 
occurred  in  the  underground  workings  in  the  vicinity 
of  the  triangle,  K-J-H,  but  the  controversy  necessarily 
involved  all  excavations  of  the  vein  lying  easterly  of 
the  east  line  of  the  Flagstaff  and  north  of  the  Titus 
north  boundary.  Neither  party  claimed  the  surface 
overlying  this  segment  of  the  vein. 

The  decision  of  the  supreme  court  of  the  United 
States  established  two  important  basic  principles: — 

(1)  A  vein  cannot  be  pursued  on  its  course  beyond 
the  lines  which  it  actually  crosses.  The  patentee  takes 
only  so  much  of  the  vein  as  his  location  actually  covers. 
Where  such  vein  crosses  two  opposite  side-lines,  these 
lines  become,  in  law,  the  true  end-lines  of  the  location; 

(2)  The  right  to  follow  the  dip  of  the  vein  is 
bounded  by  the  end-lines,  properly  so  called,  which 
lines  are  those  which  are  crosswise  of  the  general 
course  of  the  vein  on  the  surface."^ 

The  segment  of  the  vein  in  dispute  was  not  within 
planes  drawn  through  these  side-end  lines.     It  per- 

65  Flagstaff  M.  Co.  v.  Tarbet,  98  U.  S.  463,  468,  25  L.  ed.  253,  9 
Morr.  Min.  Rep.  607,  referred  to  and  doctrine  approved,  Del  Monte  M. 
&  M.  Co.  V.  Last  Chance  M.  Co.,  171  U.  S.  55,  18  Sup.  Ct.  Rep.  895,  43 
L.  ed.  72,  19  Morr.  Min.  Rep.  370;  Empire  M.  &  M.  Co.  v.  Tombstone 
M.  &  M.  Co.,  100  Fed.  910,  913;  S.  C,  on  the  merits,  131  Fed.  339; 
Southern  Nevada  G.  &  S.  M.  Co.  v.  Holmes  M.  Co.,  27  Nev.  107,  103 
Am.  St.  Rep.  759,  73  Pac.  759,  760.  See,  also,  Jefferson  M.  Co.  v. 
Anehoria  Leland  M.  &  M.  Co.,  32  Colo.  176,  75  Pac.  1070,  1073,  64  L.  E. 
A.  925, 


1335 


VEIN  CROSSING   TWO  PARALLEL  SIDE-LINES. 


5S7 


tained  to  the  overlying  apex  within  the  Titus  ground. 
The  judgment  against  the  Flagstaff  was  affirmed. 

The  same  doctrine  had  been  previously  announced 
by  the  supreme  court  of  Colorado,*'"  and  by  the  supreme 
court  of  Utah,  in  the  Flagstaff  case,"  and  in  another 
case  involving  the  Flagstaff  patent.^^ 

§  587.  Same — The  Argentine -Terrible  case. — The 
case  of  the  Argentine  Mining  Company  v.  Terrible  Min- 
ing Company  ^'^  seems 
to  present  a  case  on 
parallel  lines  with  that 
of  the  Flagstaff  case, 
so  far  as  the  physical 
facts  are  concerned. 
We  herewith  present  a 
diagram  (figure  67)  of 
the  properties  involved, 
reduced  from  the  atlas 
of  Mr.  Emmons,  accom- 
panying his  excellent 
monograph,  ' '  Geology 
and  Mining  Industry  of 
Leadville." 

Reading  the  opinion 
of  the  supreme  court 
of  the  United  States  in 

the    Argentine-Terrible  ^  ^^ 

case  in  connection  with 
this  figure,  justifies  the  conclusion  that  the  conditions 

66  Wolfley  V.  Lebanon  M.  Co.,  4  Colo.   112,   13  Morr.  Min.  Rep.  282 
(April,  1878). 

67  June,  1878,  unreported. 

68  McCormick  v.  Varnes,  2  Utah,  355,  9  Morr.  Min.  Rep.  505    (Feb. 
1879). 

69  122  U.  S.  478,  7  Sup.  Ct.  Rep.  1356,  30  L.  ed.  1140. 


§  587  EXTRALATERAL,  RIGHTS   UNDER  ACT   OF   1872,  1336 

shown  upon  Mr.  Emmons'  maps  existed  at  the  time 
of  the  trial  of  the  case,  and  that  upon  the  state  of  facts 
thus  illustrated  the  decision  was  based.  Assuming 
that  the  course  of  the  apex  is  correctly  delineated  by 
the  line  x-x,  we  have,  as  in  the  Flagstaff  case,  the  lode 
crossing  parallel  lines,  which  the  locator  supposed 
were  side-lines,  but  which  in  law  were  end-lines.  The 
locations  were  all  made  under  the  act  of  1872.  The 
Adelaide  was  the  prior  location.  The  Argentine  com- 
pany, owning  the  Pine  and  Camp  Bird  claims,  ex- 
tended its  workings  beyond  its  side-end-line  planes, 
underneath  the  surface  of  the  Adelaide,  asserting  its 
right  to  do  so  by  reason  of  ownership  of  the  apex 
within  the  boundaries  of  the  Pine.  A  patent  had  been 
issued  to  the  Pine,  out  of  which  there  was  excepted  so 
much  of  the  surface  as  conflicted  with  the  Adelaide 
boundaries. 

At  the  trial  of  the  case  Judge  Hallett  ruled  ''that  a 
location  is  held  valid  only  to  the  extent  of  the  lode 
which  is  included  within  it."^° 

The  supreme  court  of  the  United  States,  after  quot- 
ing the  doctrine  of  the  Flagstaff  case,  said: — 

Such  being  the  law,  the  lines  which  separate  the 
location  of  the  plaintiff  below  from  the  locations  of 
the  defendant  are  end-lines,  across  which,  as  they  are 
extended  downward  vertically,  the  defendant  cannot 
follow  a  vein,  even  if  its  apex  or  outcropping  is 
within  its  surface  boundaries,  and  as  a  consequence 
could  not  touch  the  premises  in  dispute,  which  are 
conceded  to  be  outside  of  those  lines  and  outside  of 
vertical  planes  drawn  downward  through  them. 

Manifestly,  the  Flagstaff  and  Argentine  cases  were 
parallel  as  to  the   facts.     The    supreme   court  of   the 

TO  Terrible  M.  Co.  v.  Argentine  M.  Co.,  5  McCrary,  639  (re-reported), 
89  Fed.  583. 


1337 


VEIN  CROSSING  TWO  PARALLEL  SIDE-LINES. 


5  5SS 


United  States  having  in  the  former  case  emphasized 
the  controlling  force  of  surface-lines  as  fixed  by  the 
patent,  and  established  the  rule  that  when  the  lode 
crossed  a  line  which  the  locator  called  a  side-line  such 
line  became  in  law  an  end-line,  to  the  extent,  at  least, 
that  the  lode  could  not  be  followed  beyond  it,  the  ap- 
plication of  the  same  principle  to  locations  made  under 
a  law  which  required,  as  a  condition  precedent  to  a 
valid  appropriation,  the  defining  of  a  surface  and 
marking  of  boundaries  including  the  discovered  lode, 
was  logical  and  consistent/^ 

§  588.     Same — The   King-Amy  case. — Three  years 
after  the    decision  in  the    Argentine-Terrible  contro- 
versy, what  is  familiarly  known  as  the  King-Amy  (or 
N. 


Figure  68. 

Silversmith)  case,  came  before  the  supreme  court  of 
Montana.     The  facts  were  precisely  the  same  as  in  the 

"1  The  Argentine-Terrible  case  was  referred  to  and  the  doctrine  ap- 
proved in  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  &  M.  Co.,  171  U. 
S.  55,  18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Eep.  370. 


§  588  EXTRALATERAL  RIGHTS   UNDER  ACT   OF   1872.  1338 

Flagstaff  and  Argentine  cases;  that  is  to  say,  tlie  loca- 
tion was  regular  in  form,  and  instead  of  being  laid 
along  the  lode  it  was  placed  across  it,  so  that  the  vein 
entered  through  one  side-line  and  departed  through 
the  other,  as  shown  in  figure  68.  The  only  variation 
observable  is,  that  in  the  Flagstaff  and  Argentine  cases 
the  lode  crossed  the  two  side-lines,  substantially  at 
right  angles,  while  in  the  King- Amy  case  the  lode,  x-x, 
crossed  the  claim  diagonally,  the  dip  being  in  the  di- 
rection indicated  by  the  arrows. 

There  were  three  contentions  presented  for  the  con- 
sideration of  the  court: — 

(1)  That  the  Amy  could  not  pass  to  the  north  of  a 
vertical  bounding  plane  drawn  through  the  north  side- 
line, N-J,  invoking  the  doctrine  of  the  Flagstaff  and 
Argentine  cases; 

(2)  That  a  plane  should  be  drawn  at  right  angles  to 
the  course  of  the  vein,  through  the  point  E,  where  the 
vein  crossed  the  north  side-line,  N-J,  producing  the 
imaginary  bounding  plane,  E-F; 

(3)  The  application,  through  the  same  point,  of  a 
plane  parallel  to  the  located  west-end  line,  M-N,  pro- 
ducing the  imaginary  plane,  A-A. 

The  trial  court  adopted,  on  its  own  motion,  the 
second,  or  right-angle  theory. 

The  supreme  court  of  Montana,  speaking  through 
Judge  De  Witt,"  admitted  that  neither  one  of  the  three 
suggested  solutions  was  absolutely  free  from  possible 
criticism,  but  in  a  very  interesting  and  ingenious  opin- 
ion adopted  the  third  theory,  of  applying  a  plane 
parallel  to  the  one  drawn  through  the  line  which  the 
locator  called  an  end-line,  but  which  was  not  in  fact 

72  King  V.  Amy  &  Silversmith  Cons.  M.  Co.,  9  Mont.  543,  24  Pac.  200, 
203,  16  Morr.  Min.  Rep.  38. 


1339  VEIN  CROSSING  TWO  PARALLEL  SIDE-LINES.  §  588 

crossed  by  the  lode.  The  court  saw  a  marked  differ- 
ence between  the  facts  of  this  case  and  the  Flagstaff 
and  Argentine  "cases.  This  difference  is  in  the  angle 
at  which  the  vein  crossed  the  side-lines.  The  court 
did  not  clearly  demonstrate  where  it  would  draw  the 
east  end-line,  in  view  of  the  crossing  at  G.  The  deci- 
sion was  an  heroic  attempt  to  fulfill  what  the  court 
conceived  to  be  the  spirit  of  the  statute,  but  it  was 
unavailing.  The  supreme  court  of  the  United  States 
adliered  to  its  previous  doctrine,  and  in  reversing  the 
judgment  of  the  supreme  court  of  Montana  said: — 

The  difficulty  in  the  present  case  arises  from  the 
course  of  the  vein  or  lode  upon  which  the  Amy  loca- 
tion was  made.  It  is  evident  that  what  are  called 
side-lines  of  the  location,  as  shown  in  the  diagram,, 
are  not  such,  in  fact,  but  are  end-lines.  Side-lines 
properly  drawn  would  run  on  each  side  of  the  course 
of  the  vein  or  lode,  distant  not  more  than  three 
hurdred  feet  from  the  middle  of  such  vein.  In  the 
Amy  claim  the  lines  marked  as  side-Yines  cross  the 
course  of  the  strike  of  the  vein,  and  do  not  run 
parallel  with  it.  They  therefore  constitute  end- 
lines The  most  that  the  court  can  do,  where 

the  lines  are  drawn  inaccurately  and  irregularlj^,  is 
to  give  the  miner  such  rights  as  his  imperfect  loca- 
tion warrants  under  the  statute.  It  cannot  relocate 
his  claim,  and  make  new  side-lines  or  end-lines. 
"Where  it  finds,  as  in  this  case,  that  what  are  called 
side-lines  are  in  fact  PH^-Iines,  the  court  in  deter- 
mining his  lateral  rights  will  treat  such  side-lines 
as  end-lines;  but  the  court  cannot  make  a  new  loca- 
tion for  him,  and  thereby  enlarge  his  rights.  He 
must  stand  upon  his  own  location,  and  can  take  only 
what  it  will  give  him  under  the  law.'^ 

78  King  V.  Amy  &  Silversmith  Cons.  M.  Co.,  152  U.  S.  222,  228,  14 
Sup.  Ct.  Rep.  510,  38  L.  ed.  419,  18  Morr.  Min.  Rep.  76,  approved  in 
Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  &  M.  Co.,  171  U.  S.  o5,  18 
Sup.  Ct.  E«p.  895,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370. 


§  588  EXTEALATERAL  RIGHTS   UNDER  ACT    OF   1872.  1340 

Necessarily  the  supreme  court  of  the  United  States 
considered  the  facts  of  this  case  to  be  parallel  with 
those  in  the  Flagstaff  and  Argentine  cases,  although 
neither  of  these  cases  are  cited  in  the  opinion,  the  court 
resting  its  judgment  on  its  opinion  in  the  Elgin,  or 
"Horseshoe,"  case. 

The  opinion  of  Judge  De  Witt  in  the  King-Amy 
case,  or,  rather,  the  reasoning  upon  which  it  is  based, 
has,  however,  borne  some  fruit,  as  we  will  observe  when 
dealing  with  cases  where  the  vein  crosses  a  side  and  an 
end  line. 

In  the  numerous  cases  arising  in  the  Coeur  d'Alenes, 
Idaho,  between  the  Bunker  Hill  and  Sullivan  Mining 
and  Concentrating  Company,  the  Last  Chance  Mining 
Company  and  its  successor,  the  Empire  State-Idaho 
Mining  and  Development  Company,  several  instances 
of  the  vein  crossing  two  parallel  side-lines  occurred. 
The  original  prospectors  in  the  region  mistook  the 
course  of  the  upturned  bedding  planes  of  the  quartzites 
as  indicating  the  course  of  the  vein,  and  made  their 
locations  accordingly.  Subsequent  developments  dem- 
onstrated the  fact  that  the  master  fissure  which  formed 
the  footwall  of  the  vein  cut  the  bedding  planes  of  the 
quartzites  diagonally,  so  that  the  apex  of  the  vein 
crossed  the  lines  located  as  side-lines.  This  was  the 
case  with  the  Bunker  Hill,  the  first  location  in  the  dis- 
trict, the  Stem  winder  and  the  Last  Chance  adjoining. 
The  litigation  involving  the  Bunker  Hill  claim  pre- 
sented the  question  here  under  discussion  unaccom- 
panied by  complications  which  arose  in  the  cases  of  the 
Stemwinder  and  Last  Chance.  The  rule  that  where 
the  vein  crosses  two  opposite  parallel  side-lines,  these 
lines  became  the  end-lines,  was  clearly  and  concisely 
stated  in  all  of  these  cases. ^* 

74  Bunker  Hill  Extralateral,  131  Fed.  579,  588,  66  C.  C.  A.  299;  certi- 
orari denied,  200  U.  S.  617,  26  Sup.  Ct.  Rep.  754,  50  L.  ed.  622;  Stem- 


1341  DEDUCTIONS  FROM  SIDE-END-LIXE   CASES.  §  589 

It  may  be  considered  as  absolutely  and  finally  settled 
that  where  a  vein  on  its  course  crosses  two  opposite 
side-lines,  the  vein  cannot  be  followed  either  on  its  dip 
or  strike  beyond  vertical  planes  drawn  through  the 
side  end-lines,  and  that  the  angle  at  which  it  crosses 
these  side-lines  makes  no  difference  in  the  application 
of  the  principle. 

This  is  a  concise  statement  of  the  present  condition 
of  the  law  upon  this  subject  as  declared  by  the  su- 
preme court  of  the  United  States/* 

§  589.  Deductions  from  side-end-line  cases — Extra- 
lateral  right  in  such  cases  defined  by  vertical  planes 
drawn  through  the  side-end  lines  produced. — Justice 
Brewer,  in  speaking  for  the  supreme  court  of  the 
United  States  in  the  Del  Monte  case,  said: — 

Our  conclusions  may  be  summed  up  in  these  propo- 
sitions: First,  the  location  as  made  on  the  surface  by 
the  locator  determines  the  extent  of  rights  below  the 
surface.  Second,  the  end-lines,  as  he  marks  them  on 
the  surface,  with  the  single  exception  hereinafter 
noticed,  place  the  limits  beyond  which  he  may  not  go 
in  the  appropriation  of  any  vein  or  veins  along  their 
course  or  strike.  Third,  every  vein, ' '  the  top  or  apex 
of  which  lies  inside  of  such  surface-lines  extended 
downward  vertically"  becomes  his  by  virtue  of  his 
location,  and  he  may  pursue  it  to  any  depth  beyond 
his  vertical  side-lines,  although  in  so  doing  he  enters 
beneath  the  surface  of  some  other  proprietor. 
Fourth,  the  only  exception  to  the  rule  that  the  end- 
lines  of  the  location  as  the  locator  places  them  es- 
tablish the  limits  beyond  which  he  may  not  go  in  the 

winder  Extralateral  Involving  Last  Chance,  131  Fed.  591,  605,  66  C.  C. 
A.  99;  appeal  dismissed,  200  U.  S.  613,  26  Sup.  Ct.  Rep.  754,  50  L.  ed. 
620;  certiorari  denied,  200  U.  S.  617,  26  Sup.  Ct.  E€p.  754,  50  L.  ed. 
622;  S.  C,  opinion  of  trial  court,  134  Fed.  268. 

75  Parrot  S.  &  C.  Co.  v.  Heinze,  25  Mont.  139,  87  Am.  St.  Rep.  386, 
64  Pac.  326,  328,  53  L.  R.  A.  491,  21  Morr.  Min.  Rep.  232.  See,  also, 
Stewart  M.  Co.  v.  Ontario  M.  Co.   (Idaho),  132  Pac.  787,  793. 


§  589  EXTRALATERAL  RIGHTS   UNDER  ACT    OP   1872.  1342 

appropriation  of  a  vein  on  its  course  or  strike  is 
where  it  is  developed  that  in  fact  the  location  has 
been  placed  not  along  but  across  the  course  of  the 
vein.  In  such  case,  the  law  declares  that  those 
which  the  locator  called  his  side-lines  are  his  end- 
lines,  and  those  which  he  called  his  end-lines  are  in 
fact  side-lines,  and  this  upon  the  proposition  that  it 
was  the  intent  of  congress  to  give  to  the  locator  only 
so  many  feet  of  the  length  of  the  vein,  that  length  to 
be  bounded  by  the  lines  which  the  locator  has  estab- 
lished of  his  location^®  [that  is,  those  which  are 
crossed  by  the  lode  on  its  course]." 

This  leaves  little  else  to  be  said. 

None  of  the  side-end-line  cases  heretofore  reviewed 
give  countenance  to  the  suggestion  that  where  a  vein 
crosses  two  opposite  parallel  side-lines,  the  locator  is 
denied  all  extralateral  right.  On  the  contrary,  the  irre- 
sistible conclusion  to  be  drawn  from  each  of  them  is, 
that  vertical  planes  drawn  through  the  side-end  lines, 
produced  in  the  direction  of  the  downward  course  from 
the  apex,  will  carve  out  a  segment  of  the  ledge  through- 
out its  entire  depth,  which  will  belong  to  the  locator.^* 
So  in  the  Flagstaff  case,  the  side-end  lines  d-a  and  c-h 
(figure  QQ>),  produced  northerly  indefinitely,  bound  the 
extralateral  right.  In  the  Argentine  case  (figure  67) 
the  original  side-lines  of  the  Adelaide,  extended  south- 
westerly, define  its  limits.  The  extralateral  right  of 
the  Pine,  Camp  Bird,  and  Charlestown  is  interrupted 
by  a  prior  valid  appropriation  of  that  segment  of  the 
vein  underlying  the  Adelaide  apex.  Were  it  not  for 
such  interruption,  their  right  of  lateral  pursuit  would 

76  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  &  M.  Co.,  171  U.  S.  55, 
89,  18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370. 

77  Waliath  V.  Champion  M.  Co.,  171  U.  S.  293,  307,  18  Sup.  Ct.  Rep. 
909,  43  L,  ed.  170. 

78  Empire  M.  &  M.  Co.  v.  Tombstone  M.  &  M.  Co.,  100  Fed.  910,  913; 
Cosmopolitan  M.  Co.  v.  Foote,  101  Fed.  518,  521, 


1343  DEDUCTIONS  FROM  SIDE-END-LIXE   CASES.  §  589 

be  defined  by  extending  their  side-end  lines  southerly. 
As  to  whether  the  Pine,  Camp  Bird,  and  Charlestown 
would  own  the  segments  of  the  vein  within  their  re- 
spective extended  side-end-line  planes  beyond  the  con- 
flict with  the  Adelaide  depends  upon  the  correctness 
of  the  views  discussed  in  a  subsequent  section.'^ 

In  the  King-Amy  case  (figure  68)  planes  drawn 
through  the  side-end  lines,  N-J  and  M-I,  produced  in- 
definitely in  the  direction  of  K  and  L  respectively,  will 
bound  the  extralateral  right. 

A  simple  illustration  of  this  is  shown  in  figure  69, 
the  bounding  dip  planes  in  each  instance  being  defined 
by  the  produced  side-end  lines,  a-h-h',  c-d-d'.  These 
side-end  lines  are  to  be  treated  as  if  they  were  the 
original  end-lines.  Being  parallel,  the  right  of  lateral 
pursuit  cannot  be  gainsaid.  A  location  in  such  a 
form  would  be  valid  to  the  extent,  at  least,  that  it 
inclosed    the    apex.    Tt 


JE- 


is    true    that    the   end-         ^         i 
side  lines  may  be  more  '  ^«4         ' 


<^' 


than  three  hundred  feet    ^i     ^^J  . 

from  the  center  of  the  N>  ,, 

I — ^>.« — J, of 

vein,  but  m  any  event      ^  !  ^  / 

this  would  not  render  j               J^ 

the      location      wholly  "^ 

void.    The  excess  might  Figure  69. 

be  cast  off ,®°  leaving  the 

extralateral  right  unaffected.''  Subsequent  locators  of 

the  apex  on  the  outside  of  the  crossed  side-end  lines 

could  not  complain. 

79  Post,  §  596. 

80  Ante,  §  362. 

81  See,  also,  Lakin  v.  Dolly,  53  Fed.  333,  339;  Taylor  v.  Parenteau, 
23  Colo.  368,  48  Pae.  505,  507;  Bonner  v.  Meikle,  82  Fed.  697,  705,  19 
Morr.  Min.  Kep.  83;  Cosmopolitan  M.  Co.  v.  Foote,  101  Fed.  518,  522; 
ante,  §  366. 


§  589  EXTRALATERAL  RIGHTS   UNDER  ACT   OF   1872.  1344 

As  to  patents  issued  in  such  form  and  under  such 
conditions,  we  will  consider  them  in  a  subsequent 
chapter. 

Judge  J.  H.  Beatty,  in  the  last  trial  of  Tyler  Mining 
Company  v.  Last  Chance  Mining  Company,*^  adopted 
the  view  herein  announced  as  to  bounding  planes  to  be 
drawn  through  side-end  lines.  This  ruling  of  Judge 
Beatty 's  was  accepted  by  the  circuit  court  of  appeals 
for  the  ninth  circuit,*^  was  quoted  with  approval  b}^ 
the  supreme  court  of  the  United  States,**  and  was  fol- 
lowed in  the  Bunker  Hill  and  Stemwinder  cases  aris- 
ing in  the  Coeur  d'Alene,  in  Idaho,  to  which  we  have 
heretofore  alluded.*^ 

In  applying  the  decisions  in  these  end-line  cases  we 
are  forced  to  recognize  the  fact  that  all  theories  based 
upon  the  true  course  or  the  true  dip  of  veins  are  purely 
speculative.  When  the  law  says  that  end-lines  are 
those  which  are  crossed  by  the  lode,  it  does  not  imply 
that  they  shall  be  crossed  at  a  right  angle.  As  was 
said  by  the  circuit  court  of  appeals,  ninth  circuit,  in 
the  Bunker  Hill  case : — 

While  the  statute  requiring  parallelism  of  the  end- 
lines  and  the  courts  have  held  that  they  may  not  be 
laid  so  divergent  as  to  include  more  in  length  upon 
the  dip  of  the  vein  than  is  allowed  in  length  upon  the 
surface,  neither  the  statute  nor  any  decision  to  which 
our  attention  has  been  called  defines  any  particular 
angle  at  which  the  end-line  shall  cross  the  general 
course  of  the  vein  in  order  that  the  extralateral  right 
given  by  the  statute  may  exist.^® 

82  71  Fed.  848,  851,  18  Morr.  Min.  Rep.  303. 

83  Tyler  M.  Co.  v.  Sweeney,  79  Fed.  277,  280,  24  C.  C.  A.  578. 

84  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  &  M.  Co.,  171  U.  S.  55, 
91,  18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370. 

85  Ante,  §  588. 

86  Last  Chance  M.  Co.  v.  Bunker  Hill  &  Sullivan  M.  &  C.  Co.,  131 
Fed.  579,  590,  66  C.  C.  A.  299, 


1345      VEIN  CROSSIXG  OPPOSITE  NONPARALLEL  SIDE-LINES.       §  590 

So  tlie  downward  course  of  the  vein  which  may  be 
followed  in  the  exercise  of  the  extralateral  right  is  not 
necessarily  at  right  angles  to  the  strike  or  true  course. 
It  is  that  direction  which  the  vein  takes  underneath  the 
surface,  on  its  downward  course  from  the  apex,  between 
vertical  planes  drawn  through  the  end-lines,  or  the  side- 
end  lines,  as  the  case  may  be.  This  gives  a  segment  in 
length,  throughout  the  depth,  within  vertical  planes 
drawn  through  the  parallel  crossed  lines,  equal  to  the 
length  of  apex  covered  by  the  surface  boundaries, 
measured,  of  course,  on  lines  on  the  plane  of  the  vein, 
which  necessarily  would  be,  save  for  possible  '' warp- 
ing" or  local  curving,  parallel  to  the  course  of  the 
apex.*®* 

We  have  heretofore  discussed  the  meaning  of 
''downward  course"  used  in  the  statute,  and  reached 
the  conclusion  that  it  means  downward  from  a  higher 
to  a  lower  level  in  the  plane  of  the  vein  along  the 
intersecting  end-line  or  side-end-line  plane. ^' 

In  dealing  with  the  subject  of  locations  in  a  preced- 
ing chapter,^*  we  have  attempted  to  demonstrate  that 
end-lines  may  take  any  direction  so  long  as  they  cross 
the  apex  of  the  vein  and  are  parallel. 

§  590.  Vein  crossing  two  opposite  nonparallel  side- 
lines.— In  a  preceding  section,  when  considering  the 
form  of  a  surface  location,  we  have  indicated  that  there 
is  no  requirement  of  the  law  that  side-lines  should  be 
parallel,  but  have  there  said  that  the  parallelism  or 
nonparallelism  of  the  lines  originally  located  as  side- 
sea  Stewart  Mining  Co.  v.  Ontario  Mining  Co.  (Idaho),  132  Pac.  787, 
792. 

87  Ante,  §  319. 
«8  Ante,  §  365. 

Lindley  on  M. — 85 


§  590  EXTRALATERAL  RIGHTS   UNDER  ACT   OF   1872.  1346 

lines  might  become  an  important  factor,  if  the  locator 
makes  a  mistake  as  to  the  course  of  his  vein  and  locates 
crosswise,  instead  of  along  its  course.  We  had  refer- 
ence to  the  extralateral  right. 

If  we  have  correctly  stated  the  law  applicable  to 
cases  of  end-lines  converging  in  the  direction  of  the 
downward  course, — that  is,  that  in  such  instances  the 
vein  may  be  pursued  within  vertical  planes  drawn 
through  such  end-lines  produced  in  such  direction,®^ — 
and  are  justified  in  the  deductions  announced  in  the 
preceding  section,  that  parallel  side-end  lines  may  be 
produced  in  the  direction  of  the  dip  for  the  purpose  of 
defining  the  extralateral  right,  it  follows  as  a  corollary 
that  in  case  of  nonparallelism  of  side-end  lines  the 
extralateral  right  is  granted  where  such  lines  converge 
in  the  direction  of  the  dip,  as  shown  in  figure  70,  and  ' 
denied  where  they  diverge,  as  illustrated  in  figure  71. 


'I 
Figure  70.  Figure  71.  ^ 

In  our  judgment,  there  can  be  no  possible  objection 
to  this  rule.  It  logically  flows  from  the  reasoning 
which  supports  the  decisions  making  the  crossed  lines 
end-lines  in  law,  and  harmonizes  with  the  theories  in- 
voked in  support  of  most  of  the  adjudicated  cases.  It 
gives  to  the  miner  as  much  of  the  vein  as  the  imperfect 
manner  in  which  his  location  is  made  will  permit,  in 
the  light  of  established  legal  principles,  and  is  in  con- 
sonance with  the  underlying  theories  upon  which  these 
principles  rest. 

89  Ante,  §  582.  See,  also,  discussion  of  this  subject  as  applied  to  loca- 
tions made  under  the  act  of  1866,  ante,  §  574. 


1347 


VEIN    CROSSING    END    AND    SIDE    LINE. 


591 


Figure  72. 


§  591.  Vein  crossing-  one  end-line  and  a  side-line. — 
It  often  happens  that  the  vein,  instead  of  pursuing  a 
direct  course  through  the  claim  from  end-line  to  end- 
line,  diverges  after  entering  tlie  claim  at  one  end-line, 
and  passes  out  of  a  side-line,  as  illustrated  in  figure  72. 

This  occurrence  is 
found  more  frequently 
in  localities  where  state 
statutes  limit  the  widtli 
of  a  location  to  less 
than  the  maximum  al- 
lowed by  the  federal 
statute,  although  it  may 
happen  where  there  is 
no  such  limitation.  The 
locator,  at  the  time  of 
marking  his  bound- 
aries, is  rarely  able  to 
trace  his  vein  at  the  surface  through  the  entire  length 
claimed,  and  the  course  of  the  apex  is  frequently  mis- 
taken. Of  course,  the  existence  of  the  conditions 
shown  upon  the  figure  does  not  invalidate  the  loca- 
tion.^" The  claimant  necessarily  loses  the  right  to 
pursue  the  vein  on  its  course  beyond  the  crossed  side- 
line. 

As  to  his  extralateral  right  under  the  case  assumed, 
the  law  as  now  well  settled.  Such  rights,  as  we  shall 
see,  are  to  be  defined  by  establishing  a  plane  at  the 
point  where  the  vein  passes  out  of  the  claim  through 
the  side-line  {x)  parallel  to  the  crossed  end-line,  pro- 
ducing the  plane  x-6. 

The  principle  thus  established  has  reached  its  pres- 
ent recognized  force  through  a  series  of  decisions,  the 

90  ArfTonaut  Cons.  M.  Co.  v.  Turner.  23  Colo.  400.  ."58  Am.  St.  "Rep. 
245,  48  Pac.  685,  686 ;  Beik  v.  Nickerson,  29  L.  D.  662. 


§  591  EXTRALATERAL  RIGHTS   UNDER  ACT   OF   1872.  1348 

consideration  of  which  will  be  profitable  as  illustrating 
the  reasoning  applied  to  reach  the  ultimate  result,  to 
which  reasoning  it  may  be  proper  to  resort  in  the  solu- 
tion of  cognate  or  analogous  problems  to  which  the 
abstract  rule  itself  might  not  be  strictly  applicable. 

The  first  judicial  announcement  of  the  principle  is 
found  in  the  decision  of  Judge  De  AVitt,  speaking  for 
the  supreme  court  of  Montana,  in  the  case  of  King  v. 
Amy  &  Silversmith  Mining  Co.,^'  the  facts  involved 
being  shown  on  figure  68.^- 

We  quote  the  following  from  the  opinion: — 

The  law  intends  that  the  plane  of  the  end-line  shall 
operate  as  a  boundary  to  the  dip,  and  so  operate  at 
the  point  where  the  strike  is  ended.  If  the  strike 
reached  the  original  end-line,  as  in  a  regular  location, 
the  bounding  plane  would  there  operate  upon  the  dip. 
If  the  strike,  by  reason  of  its  going  out  of  a  side-line, 
falls  short  of  reaching  the  original  end-line  plane, 
that  plane  must  take  effect  where  the  strike  in  fact 
ends, — that  is,  at  a  point  on  the  side-line,  ....  and 
if  it  takes  effect  there,  its  parallelism  must  not  be  de- 
stroyed. We  therefore  have  the  bounding  plane 
operating  at  the  point  where  the  apex  leaves  the 
north  side-line,  and  operating  parallel  to  the  east 
end-line,  and  retaining  its  parallelism  as  originally 
marked  on  the  ground.  It  is  not  a  new  line  or  plane, 
or  one  judicially  constructed.  It  is  determined  by 
the  location  lines  on  the  surface.  There  is  never  any 
readjustment  according  to  subsequent  developments. 
The  parallelism  of  the  end-line  planes  is  fixed  by  lo- 
cation, and  never  varies.  The  point  of  departure  of 
the  strike  from  the  surface  lines  fixes  the  point  where 
the  end-line  plane  is  to  perform  its  functions, 
whether  that  departure  be  at  an  end-line,  as  contem- 
plated by  the  statute,  or  whether  accident  has  fixed 
it  at  a  point  on  a  side-line. 

»i  9  Mont.  543,  24  Pae.  200,  205,  16  Morr.  Min.  Kep.  38. 
82  Ante,  §  588. 


1349 


VEIN    CROSSING    END    AND    SIDE    LINE. 


5  591 


This  resulted  in  establisliin^  the  plane  E-A  (figure 
68).  But,  as  was  pointed  out  by  the  supreme  court  of 
the  United  States  in  its  opinion  reversing  the  supreme 
court  of  Montana,^^  the  only  lines  of  the  Amy  claim 
which  were  crossed  by  the  lode  were  those  originally 
located  as  side-lines.  As  tlie  lode  did  not  cross  eitlier 
line  which  the  locator  called  end-lines,  neither  of  such 
lines  were  in  law  end-lines,  and  there  was  no  justifica- 
tion for  the  application  of  a  plane  parallel  to  them  at 
the  point  where  the  vein  crossed  the  line  claimed  by  the 
locator  as  a  side-line.  As  the  vein  in  the  King-Amy 
case  crossed  the  locator's  two  parallel  side-lines,  they 
became  the  end-lines  in  law  for  all  pui^Doses. 


J? 


Figure  73. 
But  a  logical  method  of  solving  the  problem  where 
the  facts  justified  its  application  had  been  announced. 


93  King  V.  Amy  &  Silversmith  M.  Co.,  152  U.  S.  222,  228,  14  Sup.  Ct. 
■Rep.  510,  38  L.  ed.  419,  18  Morr.  Min.  E^p.  76. 


§  591  EXTRALATEBAL  RIGHTS   UNDER  ACT   OF    1872.  1350 

and  the  oi3portunity  for  analyzing  and  applying  Judge 
De  Witt's  theories  was  soon  presented  to  the  federal 
tribunals. 

"We  present  in  figure  73  a  diagram  for  the  purpose  of 
illustrating  the  contentions  of  the  parties  and  the  rul- 
ings of  the  several  courts  in  the  case  of  the  Tyler  Min- 
ing Company  v.  Last  Chance  Mining  Company,  an  out- 
line of  the  facts  of  which  may  be  briefly  stated: — 

The  Tyler  Mining  Company  applied  for  a  patent  for 
the"  entire  area  of  the  Tyler  claim  shown  upon  the  dia- 
gram, including  the  triangle  A,  which  conflicted  with 
the  Last  Chance  claim.  The  Last  Chance  company 
filed  an  adverse  claim  in  the  land  office  and  instituted 
a  suit  in  support  of  it  in  which  it  specifically  alleged 
its  priorities  over  the  Tyler  and  its  ownership  of  the 
conflicting  area.  The  Tyler  company  answered,  put- 
ting in  issue  the  question  of  priority.  It  subsequently, 
however,  withdrew  its  answer,  and  established  an  end- 
Une  (5-6)  parallel  to  its  original  end-lines,  thus  avoid- 
ing a  surface  conflict. 

The  Last  Chance,  however,  proceeded  to  judgment 
on  the  adverse  suit,  in  which  judgment  the  priority  of 
the  Last  Chance  over  the  Tyler  was  judicially  estab- 
lished. Patent  ultimately  issued  to  the  Tyler  com- 
pany for  the  Tyler  claim  without  surface  conflict  with 
the  Last  Chance,  and  a  controversy  arose  over  ore 
bodies  underneath  the  Last  Chance  surface.  In  the 
action  to  determine  the  ownership  of  these  ore  bodies, 
the  Tyler  extralateral  right  on  the  vein  passing 
through  an  end-line  and  side-line  of  the  Tyler  claim 
as  originally  located  was  the  subject  of  discussion,  as 
the  Tyler  company  asserted  its  priority  in  fact  over  the 
Last  Chance.  The  Last  Chance  company  denied  the 
extralateral  right  claimed,  and  set  up  the  fact  that 
priority  had  been  conclusively  established  in  favor  of 


1351  VEIN    CROSSING    END    AND    SIDE    LINE.  §  591 

the  Last  Chance  by  the  judgment  taken  pro  confesso 
in  the  adverse  suit.  The  trial  court  sustained  the  de- 
fense of  former  adjudication.  The  appellate  court, 
however,  reversed  this  ruling  as  to  the  effect  of  the 
judgment  in  the  adverse  suit,  holding  that  it  was  not 
res  adjudicata  and  ordered  a  new  trial.  It  also  took 
up  for  discussion  certain  exceptions  to  the  trial  court's 
charge  to  the  jury  on  the  subject  of  extralateral  rights, 
and  in  the  course  of  this  discussion  announced  its  ap- 
proval of  the  rule  adopted  by  the  supreme  court  of 
Montana  in  the  King-Amy  case.     Said  the  court: — 

An  end-line  may  be  drawn  at  the  point  where  the 
lode  abruptly  tenninates  within  the  surface  lines  or 
at  the  point  where  the  apex  of  the  lode  crosses  the 
side-line  of  the  surface  location.®* 

On  the  second  trial  the  Tyler  company  succeeded  in 
establishing  its  priority  over  the  Last  Chance  and  its 
extralateral  rights  were  defined  by  the  trial  court  on 
the  lines  suggested  by  the  appellate  court." 

This  ruling  was  affinned  by  the  circuit  court  of  ap- 
peals on  the  second  appeal,  which  court  reaffirmed  the 
doctrine  that  in  cases  where  a  vein  crosses  one  end  and 
a  side-line  the  extralateral  right  is  to  be  defined  by  a 
plane  drawn  parallel  to  the  crossed  end-line  at  a  point 
on  the  side-line  where  the  vein  passes  out  of  it.^*' 

The  case  was  then  taken  to  the  supreme  court  of  the 
United  States  on  certiorari,  which  tribunal  reversed  the 
decision  of  the  circuit  court  of  appeals  as  to  the  effect 
of  the  estoppel  by  the  judgment  in  tlie  adverse  suit, 

»♦  Tyler  M.  Co.  v.  Sweeney,  54  Fed.  285,  292,  4  C.  C.  A.  329. 

85  Not  reported. 

96  Last  Chance  M.  Co.  v.  Tyler  M.  Co.,  61  Fed.  557,  564,  9  C.  C.  A. 
613.  The  same  rule  was  applied  by  the  court  to  another  phase  of  this 
litigation  (Republican  M.  Co.  v.  Tyler,  79  Fed.  733,  735,  25  C.  C.  A.  17S), 
and  also  by  Judge  Hawley  in  Cons.  Wyoming  G.  M,  Co.  v.  Champion 
M.  Co.,  63  Fed.  540,  546,  18  Morr.  Min.  Rep.  113. 


§  591  EXTKALATERAL   RIGHTS   UNDER  ACT   OF   1872.  1352 

holding,  in  effect,  that  such  judgment  conclusively  es- 
tablished priority  in  favor  of  the  Last  Chance,  and  such 
judgment  could  not  be  collaterally  assailed,  thus  sus- 
taining the  original  ruling  of  the  trial  court.®^ 

An  effort  was  made  to  secure  from  that  tribunal  an 
expression  of  opinion  as  to  the  true  rule  to  be  applied 
in  the  definition  of  the  extralateral  right  in  this  class  of 
cases.     As  to  this  the  court  said: — 

Our  conclusions  in  this  respect  obviate  the  neces- 
sity of  considering  another  very  interesting  and 
somewhat  difficult  question  presented  by  counsel. 
It  will  be  seen  from  the  diagram,  that  according  to 
the  original  location  of  the  Tyler  claim,  the  vein 
enters  through  an  end  and  passes  out  through  a  side 
line,  while  by  the  amended  location  it  passes  in  and 
out  through  end-lines.  Of  course,  if  the  latter  is  a 
valid  location,  the  owner  of  the  claim  would  unques- 
tionably have  the  right  to  follow  the  vein  on  its  dip, 
beyond  the  vertical  plane  of  the  side-line.  But  if  it 
were  not,  and  the  original  location  was  the  only  valid 
one,  has  the  owner  the  right  to  follow  the  vein  out- 
side any  boundaries  of  the  claim  extended  down- 
ward? It  has  been  held  by  this  court  in  the  cases 
heretofore  cited,  that  where  the  course  of  a  vein  is 
across,  instead  of  lengthwise  of  the  location,  the  side- 
lines become  the  end-lines,  and  the  end  the  side  lines; 
but  there  has  been  no  decision  as  to  what  extraterri- 
torial rights  exist  if  a  vein  enters  at  an  end  and  passes 
out  of  a  side  line.  Is  that  a  case  for  which  no  pro- 
vision has  been  made  by  statute!  Are  the  parties 
left  to  the  old  rule  of  the  common  law,  that  the  owner 
of  real  estate  owns  all  above  and  below  the  surface, 
and  no  more?  Or  may  the  court  rely  upon  some 
equitable  doctrine  and  give  to  the  owner  of  the  vein 
the  right  to  pursue  it  on  its  dip  in  whatever  direction 
it  may  go,  within  the  limits  of  some  equitably 
created  end-lines? 

•7  Last  Chance  M.  Co.  v.  Tyler  M.  Co.,  157  U.  S.  683,  15  Sup.  Ct.  Eep. 
733,  39  L.  ed.  859,  18  Morr.  Min.  Rep.  205. 


1353 


VEIN    CROSSING    END    AND    SIDE    LINE. 


§591 


If  the  common-law  rule  as  to  real  estate  obtains  in 
such  a  case,  then,  of  course,  on  the  original  location 
the  owners  of  the  Tyler  claim  would  have  no  right  to 
follow  the  dip  of  their  vein  outside  of  the  vertical 
planes  of  any  of  its  boundary  lines;  and  even  if  the 
amended  application  was  perfectly  valid,  the  ques- 
tion would  arise,  whether  the  rights  acquired  under 
it  related  back  to  the  date  of  the  original  location, 
or  arose  simply  at  the  time  of  the  amendment,  in 
which  case  there  would  be  no  doubt  of  the  fact  that 
^the  owners  of  the  Last  Chance  had,  by  years,  a  prior 
location.  However,  in  the  view  we  have  taken  of  the 
other  question,  it  is  unnecessaiy  to  consider  this.^* 


FiGUKE   74. 

Judge  Hallett,  a  few  weeks  prior  to  the  announce- 
ment of    this    opinion  by  the    supreme  court  of  the 

98  Last  Chance  M.  Co.  v.  Tyler  M.  Co.,  157  U.  S.  683,  694,  15  Sup.  Ct. 
Rep.  733,  39  L.  ed.  859,  18  Morr.  Min.  Rep.  205. 


§  591  EXTRALATERAL  RIGHTS   UNDER  ACT   OF   1872.  1354 

United  States,  in  the  Last  Cliance-Tyler  controversy, 
decided  the  case  of  the  Del  Monte  Mining  and  Milling 
Co.  V.  New  York  &  L.  C.  Mining  Co.,''  wherein  he  ap- 
plied the  rules  announced  by  the  circuit  court  of  ap- 
peals, above  commented  upon.  We  reproduce  the  dia- 
gram accompanying  Judge  Hallett's  opinion,  for  the 
purpose  of  convenient  reference  (figure  74),  to  which 
we  have  added  additional  details  for  the  purpose  of 
better  illustrating  certain  views  of  Judge  Hallett  out- 
lined in  the  opinion. 

The  Del  Monte  Mining  and  Milling  Company  owned 
the  Del  Monte,  which  was  prior  in  point  of  time  to  both 
the  Last  Chance  and  New  York.  The  New  York  and 
Last  Chance  company  owned  the  New  York,  which  was 
prior  to  the  Last  Chance.  The  apex  of  the  vein  passed 
through  the  New  York  and  Last  Chance,  as  indicated 
on  the  figure,  and  in  its  downward  course  entered  into 
and  penetrated  underneath  the  surface  of  the  Del 
Monte.  The  controversy  in  the  case  arose  over  the 
ownership  of  the  ore  bodies  underneath  the  surface  of 
the  Del  Monte  claim,  and  necessitated  the  determina- 
tion of  the  extralateral  right  of  the  New  York.  The 
line  marked  "north  compromise  line"  was  established 
by  contract  between  the  owners  of  the  Last  Chance 
and  New  York,  which  contract,  of  course,  was  not 
operative  as  against  the  Del  Monte.  The  extralateral 
right  of  the  Last  Chance  was  not  involved.  The  simple 
question  presented  was  substantially  this:  Where  a 
vein  enters  an  end-line  and  passes  out  of  a  side-line, 
does  the  extralateral  right  attach,  and,  if  so,  how  shall 
it  be  defined? 

We  quote  Judge  Hallett's  views  as  applied  to  the 
facts:""— 

99  66  Fed.  212. 

100  66  Fed.  214. 


1355  VEIN    CROSSING    END    AND    SIDE    LINE.  §  591 

If  the  strike  of  tlie  lode  in  the  New  York  location 
kept  its  course  from  end  to  end  of  the  location,  the 
right  to  follow  the  lode  outside  the  location  would 
not  be  denied.  As,  however,  it  departs  on  its  strike 
from  the  location  on  the  east  side,  and  not  froni  the 
north  end,  it  is  said  that  the  claim  has  no  end-lines, 
or,  at  all  events,  none  that  can  be  recognized  as  limit- 
ing the  right  to  any  part  of  the  vein  outside  of  the 
exterior  lines  of  the  claim.  This  is  asserted  as  a 
proposition  of  law,  deducible  from  several  decisions 
of  the  supreme  court,  that  the  lines  of  a  location 
crossed  by  the  apex  of  a  vein  on  its  strike  shall,  as 
to  such  vein,  be  regarded  as  end-lines,  whatever 
their  position  may  be;  and  if  this  proposition  be 
accepted,  the  south  end-line  and  east  side-line  inter- 
sected by  the  outcrop  of  this  lode  are  not  parallel 
to  each  other,  as  demanded  by  section  twenty-three 
hundred  and  twenty  of  the  Revised  Statutes.  This, 
however,  has  not  been  the  interpretation  of  the  law 
in  the  supreme  court,  or  in  any  court,  so  far  as  we 
are  advised.  It  is  true  that  in  the  Flagstaff  case,^ 
and  recently  in  the  Amy-Silversmith  case,^  the  su- 
preme court  declared  that  the  side-lines  of  a  loca- 
tion shall  be  end-lines  whenever  the  lode  on  its 
strike  crosses  such  lines;  but  these  decisions  do  not 
affinn  that  all  lines  of  a  location  crossed  by  a  lode 
on  its  strike  shall  be  end-lines.  The  most  that  can 
be  deduced  from  them  is,  that  opposite  lines  par- 
allel to  each  other,  when  crossed  by  the  lode,  shall 
be  end-lines.  The  case  presented  is  not  within  the 
principle  of  these  decisions.  We  have  a  lode  ex- 
tending on  its  strike  on  the  general  course  of  the 
location  and  within  its  side-lines  a  distance  of  ten 
hundred  and  seventy  feet.  It  is  conceded  that  the 
south  end-line  of  the  location  is  well  placed,  and  all 
parts  of  the  lode  covered  by  the  location  are  within 
the  end-lines  as  fixed  by  the  locator.     The  difficulty 

1  98  U.  S.  463,  25  L.  ed.  253,  9  Morr.  Min.  Eep.  607. 

2  152  U.  S.  222,  14  Sup.  Ct.  Rep.  510,  38  L.  ed.  419,  18  Morr.  Min. 
Rep.  76. 


§  591  EXTRALATERAL  RIGHTS  UNDER  ACT   OF   1872.  1356 

arises  from  the  circumstance  that  the  location  ex- 
tends in  a  northerly  direction,  two  hundred  and 
eighty  feet  beyond  the  point  where  the  lode  diverges 
from  the  side-line.  No  reason  is  perceived  for  say- 
ing that  this  mistake  in  the  length  of  the  location 
should  defeat  the  right  to  follow  the  vein  on  its  dip 
outside  of  the  location.  It  is  said  that  we  cannot 
make  a  new  end-line  at  the  point  of  divergence  or 
elsewhere,  because  the  court  cannot  make  a  new 
location,  or  in  any  way  change  that  made  by  the 
parties.  This,  however,  is  not  necessarj'-.  We  can 
keep  within  the  end-lines  fixed  by  the  locator,  in  re- 
spect to  any  extralateral  right  that  may  be  recog- 
nized, without  drawing  any  line,  and  if  there  be 
magic  in  the  word  *'line,"  it  will  be  better  not  to 
use  it.^ 

In  this  instance,  as  in  most  controversies  between 
adjacent  owners,  it  is  necessary  to  ascertain  what 
part  of  the  lode  is  within  the  New  York  location; 
and  this,  according  to  the  map,  appears  to  be  ten 
hundred  and  seventy  feet.  At  all  points  on  the  dip 
of  the  lode  into  the  mountain  westwardly,  we  can 
ascertain  the  length  of  the  lode  within  the  end-lines 
by  measuring  the  same  distance  from  the  south  end- 
line  produced.  In  this  jDroceeding,  there  is  no  de- 
parture from  the  end-lines  of  the  New  York  location 
as  fixed  by  the  locator,  and  there  is  no  new  line  of 
location  drawn  for  any  purpose  whatever.  We  keep 
entirely  within  the  end-lines  of  the  location  as  re- 
quired by  the  statute,  and  the  circumstance  that  we 
are  somewhat  short  of  the  north  end-line,  does  not 
in  any  way  affect  the  principle  to  be  followed  in 
construing  the  statute. 

In  deciding  the  application  for  injunction,  Judge 
Hallett  limited  its  operation  to  the  segment  of  the  vein 
lying  south  of  the  plane  r-z  parallel  to  the  end-line 
plane  h-g-g'. 

3  Quoted  in  Ajax  Gold  Mining  Co.  v.  Hilkey,  31  Colo.  131,  102  Am. 
St.  Rep.  23,  72  Pae.  447,  450,  62  L.  E.  A.  555,  22  Morr.  Min.  Eep.  585. 


1357 


\t:in  crossing  end  and  side  line. 


§591 


This  case  does  not  appear  to  liave  been  considered  by 
any  of  the  appellate  courts,  but  subsequently  a  contro- 
versy arose  between  the  owners  of  the  Del  Monte  and 
the  Last  Chance  claims  wherein  the  extralateral  rights 
of  the  Last  Chance  were  determined  substantially  upon 
the  same  principles.  The  case,  however,  suggested 
other  questions  of  large  importance,— viz.,  the  right  of 
junior  locators  to  place  their  lines  over  senior  claims, 
and  the  definition  of  the  extralateral  rights  as  between 
the  two  conflicting  lode  claims,  each  covering  the  apex 
of  the  vein.  The  first  of  these  other  questions  we  have 
heretofore  discussed.*  The  second  one  suggested  is 
fully  presented  in  a  subsequent  section.^ 

Subsequent  to  the  decision  of  the  supreme  court  of 
the  United  States  in  the  Tyler-Last  Chance  litigation, 
the  supreme  court  of  Montana  was  afforded  an  oppor- 
tunity of  applying  the  doctrine  originally  announced 
by  it  in  the  King- Amy  case  to  a  controversy  involving 
extralateral  rights  on  a  vein  which  crossed  an  end  and 
a  side  line.  The  case  of  Fitzgerald  v.  Clark,  which 
came  before  that 
court,®  involved  a 
contention  between 
two  lateral  coter- 
minous lode  claims, 
— the  Niagara  and 
Black    Rock, —  as 

shown   in   the    ac-  ^ 

companying      dia-  ^ 

gram    (figure   75),  Figure  75. 

reproduced  from  the  one  accompanying  the  opinion. 

4  Ante,  §§  363,  363a. 

5  Test,  §  597. 

6  17  Mont.  100,  52  Am.  St.  Rep.  665,  42  Pac.  273,  30  L.  E.  A.  803. 


§  591  EXTRALATERAL  RIGHTS   UNDER  ACT    OF   1872,  1358 

The  Black  Rock  was  the  older  of  the  two  locations/ 

The  vein  entered  the  west  end-line  of  the  Black  Rock, 
pursued  an  easterly  trend,  crossing  through  the  com- 
mon side  boundary  at  A,  and  thence  through  the  east 
end-line  of  the  Niagara,  thus  presenting  a  case  where 
the  vein  on  its  course  crossed  an  end  and  side  line  of 
each  claim.  As  in  King  v.  Amy  &  Silversmith  Min- 
ing Co.,^  Judge  De  Witt  wrote  the  opinion  of  the  court, 
and  in  doing  so  reviewed  all  the  end-line  cases  which 
had  been  decided  subsequent  to  the  ruling  in  the  Amy 
case.  The  same  reasoning  was  applied  to  the  solu- 
tion of  the  Fitzgerald-Clark  controversy  as  was  in- 
voked in  the  Amy  case. 

The  court  awarded  an  extralateral  right  to  the 
Niagara,  the  junior  claim,  to  the  extent  of  the  length  of 
the  apex  within  its  surface  lines,  such  right  being 
defined  by  the  extension  of  the  east  end-line  boundary 
(D-B  on  figure  75)  in  the  direction  of  the  dip  of  the 
vein,  and  a  plane  parallel  to  it  applied  at  A  where  the 
vein  crossed  the  side-line  common  to  the  two, claims. 
As  a  result  the  ownership  of  the  ore  bodies  in  dispute 
underlying  the  surface  of  the  senior  claim  was  ad- 
judged to  be  in  the  junior  claim.  In  other  words,  the 
right  of  the  senior  claim  to  the  vein,  both  on  the  sur- 
face and  in  depth,  ceased  as  against  the  junior  claim- 
ant at  the  point  where  the  apex  passed  out  of  the  side 
line  of  the  senior  claim. 

The  Niagara-Black  Rock  case  and  the  one  between 
the  Del  Monte  Mining  and  Milling  Company  and  the 
Last  Chance  company  involving  the  extralateral  right 
on  the  Last  Chance  vein,  shown  on  figure  74,  supra, 
reached  the  supreme  court  of  the  United  States  and 

7  Opinion  of  supreme  court  of  the  United  States  in  Clark  v.  Fitz- 
gerald, 171  U.  S.  92,  18  Sup.  Ct.  Eep.  941,  43  L.  ed.  87. 

8  9  Mont.  543,  24  Pac.  200,  16  Morr,  Min.  Rep.  38. 


1359  VEIN  DEPARTING  AND  RETURNING  THROUGH  SroE-LINE.    §591a 

were  considered  together.  In  reaching  its  conclusions 
as  to  the  problem  under  discussion  the  court  cited  and 
referred  to  the  decisions  which  we  have  heretofore  dis- 
cussed and  gave  the  doctrine  therein  announced  its 
unqualified  approval.® 

As  heretofore  noted,  we  reserve  for  future  discussion 
the  decision  of  the  supreme  court  of  the  United  States 
in  the  Del  Monte  case,  when  we  reach  the  suliject  of 
extralateral  rights  between  claimants  whose  surface 
lines  conflict. ^° 

The  only  cases  other  than  those  heretofore  cited 
where  the  question  under  immediate  discussion  was 
considered  which  have  come  under  our  observation  are 
Parrot  Silver  and  Copper  Company  v.  Heinze,"  where 
the  rule  was  accepted,  but  only  tentatively  involved, 
and  Ajax  Gold  Mining  Company  v.  Hilkey,^-  where  the 
doctrine  was  recognized, 

§  591a.  Vein  crossing  one  end-line,  passing  out  of  a 
side-line,  then  returning  and  ultimately  passing  out  of 
either  the  other  side  or  end  line. — A  situation  illus- 
trated on  figure  76  was  discussed  by  Judge  Ross  in  the 
case  of  "Waterloo  Mining  Co.  v.  Doe,^^  wherein  he 
said: — 

The  grant  is  to  lodes  having  their  apex  in  the 
ground  patented.  The  fact  that  a  part  of  the  apex 
might  be  in  the  ground  granted  would  not  give  any 
right  to  any  part  of  the  vein  the  apex  of  which  was 

9  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  18 
Sup.  Ct.  Rep.  895,  43  L.  ed.  72;  Clark  v.  Fitzgerald,  171  U.  S.  92,  18 
Sup.   Ct.  Rep.  941,  43  L.  ed.  87. 

10  Fast,  §  596. 

11  25  Mont.  139,  87  Am.  St.  Rep.  3S6.  64  Pac.  326,  328.  53  L.  R.  A. 
491,  21  Morr.  Min.  Rep.   232. 

12  31  Colo.  131,  102  Am.  St.  Rep.  23,  72  Pac.  447,  449,  62  L.  R.  A. 
555,  22  Morr.  Min.  Rep.  585. 

13  82  Fed.  45,  55,  27  C.  C.  A.  50,.  19  Morr.  Min.  Rep.   1. 


591a      extr-vlateral  rights  under  act  of  1872. 


1360 


not  therein,  altliougli  the  apex  might  be  cut  by  both 
end-lines  of  the  granted  premises. 

Undoubtedly,  in  the  case  assumed  and  illustrated  on 
the  figure  76,  applying  the  principle  announced  in  the 
preceding  section,  the  locator  would  have  extralateral 
rights  between  the  planes  a-d-v  and  y-iv  and  between 
the  planes  h-c-o  and  x-n. 

If  the  portion  of  the 
^  apex  x-y  were  within 
public  land  it  might  be 
appropriated  by  a  jun- 
ior locator  in  such  a 
way  as  would  confer 
an  extralateral  right, 
which  might  be  exer- 
cised by  following  the 
vein  underneath  the 
senior  location.  In 
other  words,  the  apex 
x-y  and  the  underground  parts  of  the  vein  lying  be- 
tween the  vertical  planes  y-w  and  x-n  do  not  neces- 
sarily pass  under  this  assumption  to  the  senior  locator. 
If,  however,  we  may  assume  that  the  portion  of  the 
apex  x-y  is  within  a  tract  of  land  patented  under  the 
placer,  townsite,  railroad,  agricultural,  or  any  laws 
under  which  rights  are  confined  to  vertical  boundaries, 
we  have  an  opportunity  to  test  the  value  of  the  sug- 
gestion discussed  in  a  previous  section." 

The  views  of  the  secretary  of  the  interior  quoted 
and  commented  on  in  that  section,  if  they  can  be  ac- 
cepted as  establishing    the    doctrine    of  "theoretical 


2^  It 

Figure  76. 


1*  §  312a. 


1361  VEIN  DEPARTING  AND  RETURNING  THROUGH  SIDE-LIITO.   §591a 

apex,"  applied  to  the  case  now  assumed,  would  result 
in  the  conclusion  that,  as  a  matter  of  law,  the  location 
shown  on  figure  76  contained  the  apex  for  the  entire 
length  of  the  claim,  conferring  an  extralateral  right 
between  the  end-line  planes  a-d-v  and  b-c-o.  In  other 
words,  to  paraphrase  the  opinion  of  the  secretary  of 
the  interior  in  the  Mabel  Lode  case,^^  for  the  purpose 
of  discovery  and  purchase  under  the  mining  laws,  the 
legal  apex  of  the  vein  from  a;  to  2/  on  figure  76,  dipping 
out  of  the  ground  disposed  of  under  laws  limiting 
rights  to  the  common-law  attributes  of  ownership 
within  vertical  planes,  is  that  portion  of  the  vein 
within  the  location  as  shown  on  the  figure  which  would 
constitute  the  actual  apex  if  the  vein  had  no  actual 
existence  in  the  ground  previously  disposed  of.  In 
other  words,  as  to  this  segment  of  the  vein  x-y  the 
legal  apex  is  along  the  line  of  intersection  of  the  verti- 
cal bounding  plane  of  the  previously  patented  tract 
with  the  plane  of  the  vein  underneath  the  surface. 

Of  course,  the  location  of  the  claim  under  the  condi- 
tions presently  assumed  would  carry  everything  within 
its  vertical  boundaries.  The  only  question  remaining 
is  whether  that  segment  of  the  vein  between  the  planes 
y-iv  and  x-n  could  be  followed  on  the  downward  course 
outside  of  and  beyond  the  vertical  side-line  plane  d-c. 
What  view  the  courts  may  ultimately  take  with  refer- 
ence to  extralateral  rights  under  the  conditions  we 
have  assumed  cannot  be  foretold  with  any  degree  of 
certainty,  and  our  own  opinion,  if  we  had  formed  one, 
is  of  no  serious  moment. 

18  Woods  V.  Holden,  26  L.  D.  198;  S.  C,  on  review,  27  L,  D.  375. 
Lindley  on  M. — 86 


§  591a      kstralateral  rights  under  act  of  1872. 


1362 


In  figure  77  we  pre- 
sent an  illustration  of 
an  east-and-west  vein 
dipping  north  from  the 
Garden  into  the  Hope, 
a  case  which  was  con- 
sidered in  one  of  the 
Figure  77.  trial    courts    in    Colo- 

rado. The  apex  of  the  vein  enters  the  claim  across 
the  eastern  end-line  at  D,  passes  out  of  the  side-line  at 
C,  re-enters  the  same  line  at  B,  forks  at  A,  one  branch 
passing  out  of  the  south  side-line,  the  other  passing 
out  of  the  west  end-line  at  F.  The  controversy  arose 
over  the  ore  bodies  on  the  vein  underneath  the  Hope 
surface.  They  were  awarded  to  the  Garden  mine,  the 
extralateral  right  being  predicated  on  the  portion  of 
the  apex  A-B  within  the  boundaries  of  the  Garden.^*^ 

This  case  presents  no  serious  difficulty,  and  in  most 
of  its  aspects  is  similar  to  the  hypothetical  case  illus- 
trated on  figure  76.  The  application  of  the  rules  gov- 
erning the  definition  of  the  extralateral  right  in  cases 
where  the  vein  passes  through  an  end-line  and  a  side- 
line would  give  to  the  Garden  main  vein,  F-D,  the 
underground  segments  between  the  planes  F-F'  and 
B-B',  and  C-C  and  D-D'.  No  extralateral  right  could 
be  predicated  on  that  part  of  the  apex  B-C  outside  of 
the  location,  as  that  part  is  not  covered  by  the  loca- 
tion, and  there  is  no  opportunity  of  applying  to  this 
segment  the  doctrine  of  "theoretical  apex,"  as  the 
vein  does  not  dip  underneath  the  Garden  surface,  but 
in  the  opposite  direction.  As  to  the  branch  vein  A, 
the  bounding  plane  A-A'  results  from  the  principle 

16  Sims  V.  Garden  M.  &  M.  Co.  (unreported),  tried  before  Judge 
A.  H.  De  France,  an  experienced  mining  judge  and  formerly  member 
of  the  Colorado  supreme  court  commission. 


1363  VEIN    WITH    APEX    WHOLLY    WITHIN    LOCATION.         §  592 

that  this  same  set  of  end-line  planes  bound  the  extra- 
lateral  right  as  to  all  veins — a  principle  discussed  in 
a  subsequent  section/^ 

The  supreme  court  of  California  approves  the  rule 
as  applied  in  the  Garden  case.^* 

§  592.  Vein  with  apex  wholly  within  the  location, 
but  crossing  none  of  its  boundaries,  or  entering  at  one 
end-line  and  not  reaching  any  other  boundary. — After 
reading  the  opinions  of  the  supreme  court  of  the 
United  States  and  of  Judges  De  Witt,  Hawley,  and 
Hallett,  in  the  side-end-line  cases  reviewed  in  the  pre- 
vious section,  it  is  hardly  necessary  to  consider  under 
a  separate  classification  the  case  of  a  vein  having  its 
apex  wholly  within  the  location,  but  crossing  none  of 
its  boundaries,  as  illustrated  in  figure  78,  or  that  of 
one  crossing  an  end-liue  and  failing  to  reach  any  other 
boundary,  as  illustrated  in  figure  79. 

We  are  not  aware  of  any  adjudicated  case  such  as  is 
illustrated  by  figure  78.  Such  an  instance  was  as- 
sumed for  the  purpose  of  argument  by  Judge  Hallett 
in  the  Del  Monte  case,'^  wherein  that  judge  was  in- 
clined to  ridicule  the  idea  that  anyone  would  deny  the 
right  of  the  locator  to  follow  the  lode  within  his  end- 
lines,  upon  the  ground  that  the  lode  did  not  reach 
either  of  such  lines. 


r 


Figure  78.  Figure  79. 

17  Post,  §  o93. 

i«  McElligott  V.  Krogh,  151  Cal.   126,  90  Pac.  823,  826. 
19  Del  Monte  M.  &  M.  Co.  v.  New  York  &  L.  C.  M.  Co.,  66  Fed.  212, 
215. 


§  592  EXTRALATERAL  RIGHTS   UNDER  ACT   OF   1872.  1364 

It  would  be  exceedingly  difficult  to  understand  upon 
what  theory  the  extralateral  right  could  be  denied  in 
either  this  case  or  that  illustrated  in  figure  79. 

An  instance  of  the  latter  class  occurred  in  the  suit  of 
the  Carson  City  Gold  and  Silver  Mining  Co.  v.  North 
Star  Mining  Co.,  tried  before  Judge  J.  H.  Beatty,  sit- 
ting as  circuit  judge  in  the  ninth  circuit.^" 

We  have  presented,  on  page  721,  a  diagram  (figure 
25)  illustrative  of  this  case.  It  was  demonstrated  that 
the  course  of  the  vein  through  the  location  in  the  direc- 
tion of  the  west  end-line  was  interrupted  by  what  was 
locally  termed  a  "crossing,"  beyond  which  the  fissure 
did  not  extend.  No  ore  bodies  were  encountered  west 
of  this  crossing.  The  court  found  that  the  apex  of  the 
vein  ended  at  the  point  C,  under  the  mill,  and  applied 
at  this  point  an  end-line  plane  parallel  to  the  east  end- 
line,  invoking  the  doctrine  of  the  Tyler-Last  Chance 
case,  on  the  theory  that  the  east  end-line  was  crossed 
by  the  lode.  The  practical  result,  so  far  as  the  North 
Star  was  concerned,  would  have  been  the  same  if  the 
court  had  extended  the  west  end-line,  as  there  was  no 
segment  of  the  vein  lying  between  a  plane  drawn 
through  that  line  and  one  applied  by  the  court  at  the 
point  C. 

A  similar  case  was  assumed  for  illustrative  purposes 
by  Judge  Hawley,  in  his  decision  in  Tyler  Mining  Co. 
V.  Sweeney.^^  It  was  there  said  that  there  certainly 
could  be  no  question  in  such  a  case  as  to  the  right  of 
the  locator  to  follow  the  lode  in  its  downward  course 
for  its  entire  depth. 

In  Wakeman  v.  Norton"  the  supreme  court  of  Colo- 

20  73  Fed.  597;  affirmed  on  writ  of  error  from  circuit  court  of  ap- 
peals, 83  Fed.  658,  28  C.  C.  A.  333,  19  Morr.  Min.  Rep.  118;  certiorari 
denied,  171  U.  S.  687,  18  Sup.  Ct.  Rep.  940. 

21  54  Fed.  2S4,  293,  4  C.  C.  A.  329. 

22  24  CJolo.   192,  49  Pac.   283,   286. 


1365  VEIN    WITH    APEX    WHOLLY    WITHIN    LOCATION.         §  592 

rado  considered  a  ease  of  this  character,  and  in  its  de- 
cision thus  states  its  views: — 

In  instnictins:  the  iury  that,  in  order  to  give  any 
extralateral  rights,  it  was  essential  that  the  apex  or 
top  of  a  vein  should  on  its  course  pass  through  both 
end-lines  of  a  claim,  the  court  imposed  a  condition 
that  has  not  heretofore  been  announced  as  an  essen- 
tial to  the  exercise  of  such  right  in  any  of  the  adju- 
dicated cases. 

The  supreme  court  of  the  United  States,  in  its  opin- 
ion in  the  Del  Monte  case,  cited  with  approval  the  cases 
of  Carson  City  G.  &  S.  M.  Co.  v.  North  Star  M.  Co.,  and 
Wakeman  v.  Norton,  and  took  occasion  to  express  its 
views  arguendo  as  follows: — 

The  law  places  a  limit  on  the  length  of  the  vein 
beyond  which  he  may  not  go,  but  it  does  not  say  that 
he  shall  not  go  outside  the  vertical  side-lines  unless 
the  vein  in  its  course  reaches  the  end-lines.  No- 
where is  it  said  that  he  must  have  a  vein  which  either 
on  or  below  the  surface  extends  from  end-line  to  end- 
line  in  order  to  pursue  that  vein  on  its  dip  outside 
the  vertical  side-lines.  Naming  limits  beyond  which 
a  grant  does  not  go  is  not  equivalent  to  saying  that 
nothing  is  granted  which  does  not  extend  to  those 
limits.  The  locator  is  given  a  right  to  pursue  any 
vein  whose  apex  is  within  his  surface  limits,  on  its 
dip  outside  the  vertical  side-lines,  but  may  not  in 
such  pursuit  go  beyond  the  vertical  end-lines.  And 
this  is  all  the  statute  provides.  Suppose  a  vein 
enters  at  an  end-line  but  terminates  halfway  across 
the  length  of  the  location,  his  right  to  follow  that 
vein  on  its  dip  beyond  the  vertical  side-lines  is  as 
plainly  given  by  the  statute  as  though  in  its  course 
it  had  extended  to  the  farther  end-line.  It  is  a  vein 
the  top  or  apex  of  which  lies  inside  of  such  surface 
lines  extended  downward  vertically." 

23  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  &  M.  Co.,  171  U.  S. 
55,  90,  91,  18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370. 


§  593  EXTRALATERAL  RIGHTS   UNDER  ACT   OF   1872.  1366 

In  the  case  of  Work  Min.  &  Mill.  Co.  v.  Doctor  Jack 
Pot  M.  Co.,-*  the  circuit  court  of  appeals,  eighth  cir- 
cuit, said: — 

It  does  not  follow  that  to  secure  extralateral  rights 
the  vein  must  extend  from  end-line  to  end-line,  or,  for 
that  matter,  intersect  either  end-line. 

The  supreme  court  of  Nevada  expresses  similar 
views."^ 

The  excerpt  quoted  above  from  the  decision  of  the 
supreme  court  of  the  United  States  in  the  Del  Monte 
case  is  a  clear  enunciation  of  a  wholesome  principle 
which  prevents  the  "frittering  away  by  constiniction" 
of  the  most  valuable  right  granted  by  the  mining  laws, 
and  prescribes  a  rational  rule,  the  application  of  which 
will  result  in  a  common-sense  solution  of  many  of  the 
problems  encountered  in  the  administration  of  those 
laws. 

§  593.  Extralateral  right  as  to  veins  other  than  the 
one  upon  which  the  location  is  based. — While  the 
framework  of  the  statute  with  reference  to  the  discov- 
ery and  location  of  veins  or  lodes  is  unquestionably 
constructed  in  the  original  instance  on  the  central  idea 
of  a  single  vein,  the  appropriation  of  which  is  to  be 
accomplished  by  constructing  end-lines  across  its 
course  defining  the  length  on  the  vein  and  the  planes 
within  which  it  may  be  followed  in  depth,  with  side- 
lines parallel  to  such  course,  the  law  contemplates  that 
there  may  be  found  veins  having  their  tops,  or  apices, 
within  the  boundaries  of  the  location  other  than  the 
one  originally  discovered  and  upon  which  the  location 
is    primarily   predicated.     Such    instances  are  by  no 

24  194  Fed.  620,  629. 

25  Southern   Nevada   Gold   &   Silver   M.   Co.   v.   Holmes   Min.    Co.,   27 
Nev.  107,  103  Am.  St.  Rep.  759,  73  Pac.  759,  761. 


1367  EXTRALATERAL   RIGnT   ON   SECONDARY    VEINS.  §  593 

means  rare.  Sometimes  these  veins,  which  for  the 
purpose  of  identification  we  may  call  secondary  veins, 
are  parallel  to  the  located  vein,  in  which  case  there  is 
little  room  for  controversy  as  to  the  bounding  planes 
which  define  the  extralateral  right.  Sometimes,  how- 
ever, they  are  crosswise  of  the  original  vein,  and 
exhibit  what  we  may  call,  comparatively  speaking,  er- 
ratic tendencies.  The  difficulties  surrounding  the  ap- 
plication of  the  law  to  locations  made  under  the  act 
of  1866,  many  of  which  were  irregular  in  form,  are 
greater  than  in  the  case  of  the  more  symmetrical  loca- 
tions required  under  the  existing  law.  While  under 
the  act  of  1866  there  was  granted  but  the  one  lode, 
the  act  of  1872  enlarged  the  grant  by  conferring  upon 
the  owners  of  the  prior  locations  all  lodes  which  had 
their  tops,  or  apices,  within  the  boundaries  of  the  loca- 
tion. The  most  satisfactory  way  of  ascertaining  the 
present  state  of  the  law  on  the  subject  of  the  extra- 
lateral-right  planes  to  be  applied  to  these  secondary 
veins  is  to  trace  its  development  from  the  earlier  cases 
to  the  last  judicial  expression.  While  there  may  be 
no  uncertainty  as  to  the  abstract  rule  ultimately  an- 
nounced, it  is  sometimes  difficult  to  apply  it  without 
producing  results  which  either  challenge  the  wisdom 
of  the  rule  (which,  of  course,  is  no  warrant  for  its  non- 
observance)  or  involve  apparent  inconsistencies  or 
absurdities. 

In  the  case  of  Iron  Silver  Mining  Company  v.  Elgin 
Mining  etc.  Company,  we  find  the  following  statement 
by  the  supreme  court  of  the  United  States: — 

It  often  happens  that  the  top,  or  apex,  of  more 
than  one  vein  lies  within  such  surface  lines,  and  the 
veins  may  have  different  courses  and  dipS;  yet  his 
right  to  follow  them  outside  of  the  side-lines  of  the 
location  must  be  bounded  by  planes  drawn  vertically 
through  the  same  end-lines.     The  planes  of  the  end- 


593 


EXTKALATERAL  RIGHTS   UNDER  ACT   OF   1872.  1368 


lines  cannot  be  drawn  at  a  right  angle  to  the  courses 
of  all  the  veins  if  they  are  not  identical.^® 

This  was  not  said  in  response  to  any  issue  raised  in 
the  case,  but  it  was  presented  as  an  argument  against 
the  contention  adopted  in  the  dissenting  opinion  of 
Chief  Justice  Waite,  that  bounding  planes  on  a  vein 
within  a  location  having  nonparallel  end-lines  should 
be  defined  by  lines  drawn  crosswise  of  the  vein — e.  g., 
at  right  angles — at  the  extreme  points  where  the  apex 
leaves  the  location. 

The  first  case  in  which  the  question  was  to  any  ex- 
tent actually  involved  and  passed  upon  was  considered 
by  Judge  Hawley  sitting  as  circuit  judge  for  the  ninth 
circuit.    We  refer  to  Consolidated  Wyoming  M.  Co.  v. 

Champion  M.  Co.,-' 
the  facts  of  which  are 
illustrated  on  figure 
80. 

The  Consolidated 
Wyoming  company 
'^y  owned  the  Wyoming 
and  Ural  claims,  the 
Champion  company 
the  New  Year's  and 
New  Year's  Exten- 
sion. Both  the  Wyo- 
ming and  Ural  were 
located  under  the  act 
of  1866,  but  patented 
under  the  later  law. 
The  others  were  lo- 
cated under  the  act 
of  1872.       Both     the 


Figure  80. 


26  118  U.  S.  196,  207,  6  Sup.  Ct.  Eep.  1177,  30  L.  ed.  98,  15  Morr. 
Min.  Rep.   641. 

2T  63  Fed.  540,  18  Morr.  Min.  Rep.  113, 


1369  EXTBALATEILVL   RIGHT   ON   SECONDARY   VEINS.  §  593 

Ural  and  Wyoming  had  irregularly  shaped  surfaces 
so  common  to  locations  made  under  the  act  of  1866. 

The  original  location  of  the  Ural  was  based  on  the 
Ural  lode  x-x,  the  only  one  subject  to  appropriation  by 
a  single  location  under  the  first  mining  act.  It  was 
called  the  "contact  vein,"  as  it  was  found  between  a 
granite  hanging  and  a  slate  foot  wall.  The  Wyoming 
vein  y-y  was  entirely  within  the  slate,  and  descended 
into  the  earth  at  a  lesser  angle  than  the  Ural,  resulting 
in  a  union  of  the  two  veins  on  the  dip  underneath  the 
surface  of  the  New  Year's,  and  the  controversy  was 
as  to  the  extralateral  right  in  the  vein  below  the  line  of 
junction.  The  court  defined  the  extralateral  right  of 
the  Consolidated  Wyoming  company  on  the  Wyoming 
or  slate  vein  within  the  Wyoming  patented  lines,  by 
prolonging  the  converging  end-lines  resulting  in  the 
triangular  segment  a-h-g-f.^^  As  to  the  Ural  vein,  it 
awarded  that  segment  lying  between  the  planes  c-d-e 
and  h-k.'^ 

The  slate  vein,  passing  out  of  the  Wyoming  south 

28  We  have  heretofore  (§  574)  discussed  this  case  when  dealing 
with  the  subject  of  converging  end-lines  of  claims  located  under  the 
act  of  1866,  and  have  also  referred  to  the  suggestion  of  Mr.  Morri- 
son and  Mr.  Costigan  that,  if  the  rectangular  theory  of  extralateral 
rights  under  the  act  of  1866  was  properly  applied  to  cases  of  diverg- 
ing end-lines,  the  same  rule  should  be  applied  to  cases  similar  to  that 
shown  on  figure  80  {ante,  §  577a). 

29  The  construction  of  the  plane  li-h  parallel  to  the  line  c-d  at  the 
point  where  the  vein  crossed  the  Ural  east  side-line  is  not  altogether 
logical,  as  the  apex  of  the  vein  did  not  cross  the  line  c-d.  The  su- 
preme court  of  Colorado  has  otherwise  criticised  this  case,  holding  it  to 
be  in  conflict  with  the  case  of  King  v.  Amy  &  Silversmith  etc.  M.  Co., 
152  U.  S.  222,  14  Sup.  Ct.  Eep.  510,  38  L.  ed.  419,  18  Morr.  Min.  Rep. 
76.  See  Catron  v.  Old,  23  Colo.  433,  58  Am.  St.  Rep.  256,  48  Pac. 
687,  689,  18  Morr.  Min.  Rep.  569.  In  a  subsequent  case,  however,  the 
court  explained  and  limited  this  criticism,  and,  as  we  shall  hereafter 
note,  followed  the  reasoning  of  Judge  Hawley,  and  applied  the  prin- 
ciple to  a  secondary  vein  within  a  location  made  under  the  act  of  1872. 
Ajax  Gold  Min.  Co.  v.  Hilkey,  31  Colo.  131,  102  Am.  St.  Rep.  23,  72 
Pac.  447,  449,  62  Lr.  E.  A.  555,  22  Morr.  Min.  Rep.  585. 


§  593  EXTRALATERAL    RIGHTS   UNDER   ACT  OF   1872. 


1370 


end-line,  entered  the  Ural  and  continued  to  the  south 
as  far  as  the  point  marked  "hoist"  on  the  diagram. 
This  part  of  the  Wyoming  vein  within  the  Ural  ground 
constituted  the  "secondary  vein"  in  that  location.  In 
defining  the  extralateral  right  on  this  vein  the  court 
applied  a  plane  parallel  to  the  one  fixed  by  it  on  the 
Ural — i.  e.,  the  plane  y-i,  parallel  to  the  plane  h-k.^^ 

No  reference  is  made  in  the  decision  to  the  statement 
of  the  supreme  court  of  the  United  States  in  the  Elgin 
case,  heretofore  quoted. ^^ 

The  case  of  Walrath  v.  Champion  M.  Co.  (commonly 
called  the  Providence-Champion  case^^)  was  tried  and 
decided  by  the  same  judge  at  the  same  time  as  the 


^ 


/ 


^■■:^^ 


Figure  81. 

30  63  Fed.  550,  18  Morr.  Min.  Rep.  113. 

31  An   appeal    was   perfected   in    this    case,   but   it    was   compromised 
and   the   appeal   dismissed. 

32  63  Fed.  552,  18  Morr.  Min.  Rep.  113. 


1371  EXTRALATEELVL   RIGHT   ON   SECONDARY   VEINS.  §  593 

Wyoming-Champion  case,  the  facts  of  which  may  be 
illustrated  by  reference  to  figure  81. 

This  case  presented  an  instance  of  a  patent  issued 
under  the  act  of  1866  for  an  irregular  surface,  with 
parallel  end-linos  crossing  the  original  lode,  and  a  sub- 
sequently discovered  or  "secondaiy"  vein,  which 
crossed  neither  end-line.  The  original  lode  is  marked 
z-z  on  the  figure,  and  is  locally  known  as  the  granite 
ledge,  lying  wholly  within  a  granite  formation.  It 
crossed  two  parallel  end-lines,  a-p  and  g-h. 

Some  years  after  the  passage  of  the  act  of  1872,  an- 
other ledge  or  vein,  called  the  contact  ledge,  x-x,  was 
found  to  enter  the  Providence  ground  across  the  line 
■f-g,  pursuing  a  southerly  course,  but  it  is  not  shown 
to  have  reached  on  such  course  any  of  the  other  bound- 
aries.^^ The  Champion  company,  having  subsequent 
to  1872  located  that  portion  of  the  contact  ledge  lying 
within  the  New  Year's  and  New  Year's  Extension,  a 
controversy  arose  as  to  the  bounding  plane  between 
the  two  companies  on  this  ledge.  There  was  no  con- 
troversy between  the  litigating  parties  as  to  the  orig- 
inal, or  granite,  ledge.  The  Providence  contended, 
that  as  the  contact  ledge  crossed  the  line  f-g,  that  line 
became  in  law  an  end-line,  and  the  vertical  bounding 
plane  should  be  drawn  through  the  line  j-g,  produced 
indefinitely. 

The  Champion  contended  that  the  rights  of  the 
Providence  on  all  ledges  having  their  apices  within  its 
boundaries  must  be  fixed  with  regard  to  the  end-lines 
of  its  location  and  the  general  direction  of  such  lines, 
as  described  in  the  patent  and  delineated  upon  the  map 
accompanying  it;  that  the  only  lines  appearing  upon 
the  plat  which  at  all  fulfilled  the  natural  or  legal  defi- 

83  This  is  the  same  ledge  which  was  partially  involved  in  the  Wyo- 
ming  case,  known  there  as  the  Ural  or  contact  vein. 


§  593  EXTRALATKRAL   RIGHTS  UNDER  ACT   OF   1872.  1372 

nitions  of  end-lines  were  the  end-lines  crossed  by  the 
nitions  of  end-lines  were  the  end-lines  crossed  by  the 
original  lode,  z-z — to  wit,  g-li  and  a-p — and  that  they 
must  be  construed  to  be  the  ' '  end-lines  of  the  location ' ' 
referred  to  in  the  act  of  1872 ;  that  the  rule  enunciated 
by  the  circuit  court  of  appeals  in  Tyler  v.  Sweeney,^* 
sanctioning  the  application  of  a  plane  parallel  to  the 
end-line  at  the  point  where  the  vein  passed  out  of  a 
side-line  (a  rule  subsequently  approved  in  the  Del 
Monte  case),^^  was  applicable  to  the  case,  and  afforded 
the  only  consistent  legal  solution  of  the  controversy 
between  the  parties.  This  rule  would  apply  the  plane 
parallel  to  g-}i^  at  the  point  v,  where  the  ledge  in  con- 
troversy crossed  on  its  southward  course  the  bound- 
ary line,  f-g^  giving  the  bounding  plane,  v-v'. 

The  court  declined  to  adopt  either  theory.    It  an- 
nounced the  following  as  its  views : — 

The  act  of  1872,  in  granting  all  other  veins  that 
were  within  the  surface  lines  of  previous  locations, 
did  not  create  any  new  lines  for  such  other  veins, 
nor  invest  the  court  with  any  authority  to  make  new 
end-lines  for  such  other  veins.  And  it  is  apparent 
from  an  examination  of  the  statute  that  the  court 
has  no  power  to  make  a  new  location  for  every  vein 
that  may  be  found  within  the  surface  lines  of  the 
location,  and  thereby  enlarge  the  rights  of  the  orig- 
inal locators.  When  the  end-lines  of  a  mining  loca- 
tion are  once  fixed,  they  bound  the  extralateral 
rights  to  all  the  lodes  that  are  thereafter  found 
within  the  surface  lines  of  the  location.  It  neces- 
sarily follows,  that  the  end-lines  of  the  Providence 
survey  must  be  considered  by  the  court  as  the  end- 
lines  of  any  and  all  other  lodes  or  veins  which  lie 
"inside  of  such  surface  lines";  otherwise,  end- 
less confusion  would  arise  in  the  construction  of 
the  statute.     End-lines  would  have  to  be  constructed 

34  54  Fed.  284,  4  C.  C.  A.  32&. 

35  Ante,  §  591. 


1373  EXTRAL.VTERAL   RIGHT   ON   SECONDARY   VEINS.  §  593 

in  different  directions  if  tlie  separate  lodes  or  veins 
found  witliin  the  surface  lines  did  not  run  par- 
allel with  each  other,  and  the  result  would  be  that 
these  lines  extended  might  give  to  the  owners  of 
the  claims  a  greater  length  along  the  lode,  as  it  ex- 
tended downward,  than  they  had  upon  the  surface. 
If  the  same  end-lines  which  bind  the  extralateral 
rights  of  the  Providence  surface  survey  apply  to  the 
contact  vein,  and  to  all  other  veins,  if  any  are  here- 
after found,  then  no  such  difficulty  can  arise.  This 
is  the  rule  that  applies  to  all  locations  made  after 
the  act  of  1872,  and  it  ought  not  to  be  presumed  that 
congress,  bj^  its  grant  to  prior  locators,  intended  to 
give  greater  rights  to  them  than  were  given  and 
granted  to  subsequent  locators  under  the  same  act.^® 

The  court  cited  and  relied  upon  the  statement  of  the 
supreme  court  of  the  United  States  in  the  Elgin  case, 
heretofore  quoted. 

The  practical  result  of  the  court's  decision  was  to 
give  to  the  Providence  all  of  the  vein  south  of  the  ver- 
tical boundaries  f-g  and  g-li,  and  defining  its  extra- 
lateral  right  by  a  plane,  g-h,  produced  in  the  direction 
of  the  dip  of  the  vein — ^i.  e.,  the  plane  g-h-h'  marked 
on  figure  81,  "Line  fixed  by  the  court." 

When  the  case  reached  the  circuit  court  of  appeals 
that  court  construed  the  decision  of  Judge  Hawley  as 
defining  an  extralateral  right  through  the  side-line  f-g 
and  the  end-line  g-li.  The  appellate  court  directed  a 
modification  of  the  judgment,  the  extent  of  which  may 
be  best  understood  by  quoting  from  the  opinion.  Said 
the  appellate  court  (italics  are  ours) : — 

In  so  far  as  the  decree  appealed  from  limits  the  ex- 
tralateral right  of  the  complainant  to  follow  the  vein 
called  in  the  record  the  "back"  or  "contact"  vein 
in  its  downward  course  by  the  line  f-g  running  south 

88  Walrath   v.   Champion   M.    Co.,    63    Fed.    552,   557,    18    Morr.   Min. 
Bep.  113. 


§  593  EXTRALATERAL   RIGHTS   UNDER   ACT   OF   1872.  1374 

forty-three  degrees  west,  extending  vertically  down- 
ward, it  is  erroneons,  and  should  be  modified.  The 
court  below  correctly  found  and  adjudged  the  end- 
lines  of  the  Providence  claim,  under  which  complain- 
ant claims,  to  be  the  lines  a-p  and  g-h;  and  further, 
that  they  are  the  true  and  only  end-lines  of  each  and 
eveiy  vein,  lode,  or  ledge  found  within  the  surface 

location  of  the  Providence  claim In  no  case 

is  the  extralateral  right  of  a  first  locator  in  respect 
to  a  vein,  lode,  or  ledge  having  its  top  or  apex  within 
the  lines  of  his  surface  location  bounded  by  any  side- 
line of  the  surface  location  extended  downward  or 
otherwise.  To  the  extent,  therefore,  that  the  extra- 
lateral  right  of  the  complainant  to  the  back  or  con- 
tact ledge  here  in  controversy  was  bounded  by  the 
court  below  by  the  side-line  f-g,  running  south  forty- 
three  degrees  west,  extended  vertically  downward, 
it  is  erroneous.  It  should  be  bounded  by  vertical 
planes  drawn  downward  through  the  end-line  g-h, 
running  south  seventy-three  degrees  west,  and 
through  the  end-line  a-p,  extended  indefinitely  in 
their  own  direction,  subject  to  the  condition  that  the 
complainant  has  no  right  to  enter  upon  the  surface  of 
the  respondent's  claims.^'' 

This  solution  of  the  problem  is  not  altogether  clear 
or  free  from  ambiguity.  The  appellate  court  was  evi- 
dently desirous  of  making  it  plain  that  the  line  f-g 
could  not  be  considered  as  an  extralateral-right  line, 
and  in  this  regard  there  is  no  element  of  uncertainty. 
If  we  construe  the  opinion  of  the  court  with  sole  re- 
gard to  the  direction  given  to  the  line  g-h,  south  sev- 
enty-three west,  the  direction  of  the  dip,  it  would  seem 
that  the  line  was  not  to  be  operative  on  the  reverse 
course  north  seventy-three  degrees  east.  But  the  sub- 
sequent clause,  italicized  above,  "subject  to  the  condi- 
tions that  the  complainant  has  no  right  to  enter  upon 
the  surface  of  the  respondent's  claims,"  leads  to  the 

87  72  Fed.  978,  980,  19  C.  C.  A.  323. 


1375  EXTRALATER-VL   RIGHT  ON   SECONDARY  VEINS.  §  593 

inference,  more  or  less  plausible,  that  the  court  in- 
tended the  line  g-li  to  be  extended  in  both  directions, — 
south  seventy-three  degrees  west,  in  the  direction  of 
the  dip,  and  north  seventy-three  degrees  east,  so  as  to 
take  in  a  part  of  the  apex  lying  outside  of  the  Provi- 
dence and  within  the  New  Year's  and  New  Year's 
Extension  claims,  as  this  was  the  only  surface  belong- 
ing to  respondents  to  which  the  court  could  have  made 
any  possible  reference. 

The  court  went  further  and  fixed  the  end-line  plane 
a-p  at  the  south  end  of  the  claim  as  the  southern 
bounding  plane  on  the  contact  ledge,  whereas  the  proof 
showed  quite  clearly  that  that  ledge,  if  it  continued  at 
all  in  a  southerly  direction,  would  in  all  probability 
have  crossed  the  side-line  e-f. 

If  the  court  intended  to  authorize  the  projection  of 
the  north  bounding  plane  g-h  on  the  reverse  course, 
north  seventy-three  degrees  east,  the  line  t-g  on  figure 
82  {post),  it  necessarily  contemplated  the  same  result 
as  to  the  line  a-p,  and  thus  to  include  within  these  end- 
line  planes  something  like  thirty-one  hundred  feet  on 
a  vein  with  only  a  few  hundred  feet  of  apex,  projecting 
end-line  planes  over  the  apex  in  other  claims  whose  sur- 
faces did  not  conflict  with  the  Providence,  or,  to  state 
the  doctrine  in  a  more  condensed  form, — if  the  apex  of 
a  secondary  vein  is  found  to  any  extent  in  a  location,  the 
owner  of  the  claim  takes  all  parts  of  such  vein  under- 
ground which  are  embraced  within  the  end-line  planes 
extended  in  both  directions  through  the  end-lines  on 
the  original  lode.  That  the  decision  of  the  court  is 
susceptible  of  this  construction  is  pointed  out  by  the 
supreme  court  of  Colorado  in  Jetferson  M.  Co.  v.  An- 
choria-Leland  M.  Co.^**     Such  construction,  however, 

38  32  Colo.  176,  75  Pac.  1070,  1075,  64  L.  R.  A.  925;  Ajax  M.  Co. 
V.  Hilkey,  31  Colo.  131,  102  Am.  St.  Rep.  23,  72  Pac.  447,  62  L.  R.  A. 
555,  22  Morr.  Min,  Rep.  585. 


§  593  EXTRALATERAL   RIGHTS  UNDER  ACT   OF   1872.  1376 

we  think,  is  clearly  negatived  if  we  give  lieed  to  the 
principle  applied  by  the  supreme  court  of  the  United 
States,  affirming  the  decision  of  the  supreme  court  of 
Montana  in  the  Niagara-Black  Rock  case.^°  The  sug- 
gested application  of  this  doctrine,  with  its  possible 
attendant  results,  will  be  noted  when  we  take  up  for 
consideration  in  logical  order  a  later  case  passed  upon 
by  the  same  court.  However,  we  are  quite  satisfied 
that  this  result  was  neither  intended  nor  contemplated 
by  the  court. 

An  appeal  was  taken  from  the  judgment  of  the  cir- 
cuit court  of  appeals  to  the  supreme  court  of  the 
United  States  by  the  Providence  owners." 

89  Clark  V.  Fitzgerald,  171  U.  S.  92,  18  Sup.  Ct.  Rep.  941,  43  L. 
ed.  87;  Fitzgerald  v.  Clark,  17  Mont.  150,  52  Am.  St.  Rep.  665,  42 
Pac.  273,  277,  30  L.  R.  A.  803. 

*o  No  cross-appeal  was  taken  by  the  Champion  company  to  either  of 
the  appellate  courts,  for  economic  reasons.  All  of  the  vein  within  the 
New  Year's  and  New  Year's  Extension  claims  north  of  the  plane  f-g 
had  been  worked  out  years  before  the  litigation  arose.  There  was 
nothing  of  value  there  to  justify  litigation.  The  narrow  strip  of 
ground  between  the  plane  claimed  by  the  Champion,  v-v',  and  the  one 
fixed  by  the  court,  g-h-h',  did  not  embrace  the  ore  "shoot,"  and  was 
practically  valueless.  The  valuable  ore  bodies  over  which  the  litiga- 
tion arose,  and  which  alone  engaged  the  attention  of  either  courts  or 
litigants,  were  within  the  triangle  formed  by  the  line  g-h-h',  and  the 
one  claimed  by  the  Providence,  f-g-g'.  The  only  object  to  be  gained 
by  prosecuting  a  cross-appeal  would  have  been  to  secure  the  establish- 
ment of  a  principle  to  be  followed  in  other  cases.  However,  the  Cham- 
pion company  stated  its  original  position  fully  in  both  appellate  courts, 
and  it  was  urged  as  a  reason  for  the  affirmance  of  the  judgment  of 
the  trial  court  that  the  decree  had  awarded  the  Providence  more  than 
it  was  legally  entitled  to,  and  therefore  they  had  no  reason  to  com- 
plain. It  has  been  said  by  a  writer  commenting  on  this  case  ("A 
Problem  in  Mining  Law,"  Harvard  Law  Review,  Dec,  1902,  vol.  xvi, 
No.  2),  that  the  trial  court  probably  refused  to  grant  the  contention 
of  the  Champion  company — the  line  v-v' — by  reason  of  its  "apparent 
injustice."  "If  that  line  [says  the  writer]  had  been  affirmed  by  the 
decision,  the  Champion  company  would  have  taken,  perhaps,  not  only 
a  portion   of   the   Providence   shaft,   but   also   the  greater   part  of   its 


1377  EXTRALATERAL   RIGUT   ON   SECONDARY   VEINS. 


On  this  appeal  the  counsel  for  the  Providence  in 
their  briefs  presented  a  diagram  for  the  purposes  of 
illustration,  which  we  herewith  reproduce  as  figure  82, 


Figure  82. 
upon   which   was   delineated    the   line    t-g-h  marked 
"Line  fixed  by  the  circuit  court  of  appeals."     In  other 

underground    workings.     In    an    attempt    to    avoid    such    a    result,    the 
courts  made,  it  is  suggested  with  deference,   an  erroneous  ruling." 

We  do  not  feel  called  upon  to  defend  the  courts  from  the  charge 
that,  in  deciding  the  case,  they  considered  the  hardship  or  inconven- 
ience to  one  party  or  the  other  which  might  flow  from  a  given  deci- 
sion, instead  of  confining  themselves  to  an  interpretation  of  the  statute. 
But  some  reason  other  than  the  one  above  assigned  will  have  to  be 
presented,  in  view  of  the  fact  that  the  Providence  shaft  and  almost 
Lindley  on  M. — 87 


§  593  EXTRALATERAL   RIGHTS   UNDER  ACT   OF   1872.  1378 

words,  the  Providence  tlius  interpreted  the  decision  of 
the  appellate  court.  The  counsel  for  the  Champion 
company,  although  no  cross-appeal  had  been  taken, 
contended  that  the  trial  court  never  intended  to  fix  the 
line  f-g  as  an  extralateral-right  line.  It  was  estab- 
lished as  a  vertical  bounding  plane  for  the  purpose  of 
determining  the  intralimital  rights  of  the  Providence 
on  the  ledge,  and  this  without  serious  regard  for  the 
extralateral  right  of  the  Champion  on  the  Ural  or  con- 
tact vein,  which,  applying  the  principle  of  the  Niagara- 
Black  Rock  case,  was  entitled  to  be  considered.  The 
line  f-g  never  was  given  any  operative  effect  by  the 
trial  court  beyond  the  point  g.  To  have  been  given 
such  effect  it  should  have  been  extended  in  the  direc- 
tion claimed  by  the  Providence,  which  contention  was  ^ 
rejected.  Extralateral  lines,  or,  more  correctly  speak- 
ing, planes,  are  those  which  cut  or  intersect  outside 
parts  of  the  vein,  such  an  underground  segment  as  is 
outside  of  a  vertical  plane  drawn  through  a  surface 

all  of  its  -workings  were  not  on  the  contact  vein,  but  on  the  granite 
vein,  five  hundred  feet  to  the  east.  The  back  or  contact  vein  had  been 
reached  from  the  Providence  workings  by  means  of  a  long  crosscut 
through  country  rock,  and  none  of  these  workings  on  the  contact  vein 
driven  from  the  crosscut  by  the  Providence  were  within  the  ground 
claimed  by  the  Champion.  As  counsel  for  the  Champion  company, 
the  author  feels  convinced  that  if  that  company  had  presented  a  cross- 
appeal,  the  court  of  last  resort  would  have  been  compelled  to  apply 
at  t)  a  plane  parallel  to  the  Providence  end-line  g-h — "the  line  claimed 
by  the  Champion."  We  think  that  with  the  exception  of  one  decision 
of  the  supreme  court  of  Colorado,  which  laid  stress  on  the  opinion  in 
the  Providence-Champion  case,  notwithstanding  the  foregoing  expla- 
nation of  the  author  (Jefferson  M.  Co.  v.  Anchoria-Leland,  M,  &  M. 
Co.,  32  Colo.  176,  76  Pac.  1070,  16  L.  E.  A.  925),  the  modern  tendency 
of  decision  is  to  apply  to  all  secondary  veins  at  the  points  of  depart- 
ure planes  parallel  to  the  end-lines  controlling  extralateral  rights  on 
the  original  vein.  The  development  of  the  subject  is  shown  in  the 
text  which  follows. 


1379  KXTRALATERAL   RIGHT   ON   SECONDARY   VEINS.  §  593 

side-line.  The  line  f-g  stopping  at  g,  under  the  decree 
of  the  trial  court,  did  not  cut  any  "outside"  parts  of 
the  vein,  and  was  in  no  sense  an  extralateral-right  line. 
This  diagram,  appearing  in  the  brief  of  counsel  for 
the  Providence,  was  utilized  by  the  supreme  court  of 
the  United  States  to  illustrate  the  facts  of  the  case; 
but  its  attention  was  not  called  to  the  effect  of  the 
westerly  extension  of  the  line,  marked  on  the  diagram 
"Line  fixed  by  the  circuit  court  of  appeals,"  nor  does 
it  discuss  it  in  its  opinion.  There  were  nine  assign- 
ments of  error.  The. first  eight  attacked  so  much  of 
the  decree  as  established  the  line  g-li  as  an  end-line  for 
the  purpose  of  determining  the  extralateral  right,  or 
failed  to  establish  the  line  f-g,  and  that  line  produced 
indefinitely  in  the  direction  of  g'  as  such  end-line 
The  last  two  assailed  so  much  of  the  decree  as 
awarded  to  the  Champion  company  the  right  to  pur- 
sue the  vein  on  its  downward  course  underneath  the 
parallelogram  h-i-k-W  north  of  the  end-line  plane  g-li. 
The  controversy  thus  limited  did  not  necessarily  in- 
volve the  consideration  of  anything  north  of  the  line 

The  judgment  of  the  circuit  court  of  appeals  was 
affirmed,  the  supreme  court  of  the  United  States  plac- 
ing the  stress  of  its  opinion  upon  the  confirmation  of 
that  portion  of  the  decision  of  both  trial  and  appellate 
courts  which  denied  that  the  line  f-g  performed  the 
function  of  an  end-line  defining  an  extralateral  right. 
As  there  was  no  cross-appeal,  and  this  conclusion  hav- 
ing been  reached,  the  judgment  was  necessarily 
affirmed." 

41  Walrath   V.   Champion   M.   Co.,   171   U.   S.   293,    18   Sup.    Ct.   Kep. 
&09,  43  L.  ed.   170,  19   Morr.  Min.  Rep.  410. 


§  593  EXTRALATEBAL   RIGHTS   UNDER  ACT   OF   1872.  1380 

It  is  quite  apparent  that  the  modification  of  the 
order  directed  by  the  circuit  court  of  appeals  was  made 
out  of  abundant  caution  to  avoid  the  possibility  of  the 
decree  being  interpreted  as  sanctioning  the  line  f-g 
as  an  end-line  defining  an  extralateral  right.  Its  force 
as  defining  an  intralimital  right  was  accepted  by  the 
Champion  by  failing  to  take  a  cross-appeal.  We  are 
quite  convinced  that  counsel  for  the  Providence  placed 
an  erroneous  interpretation  on  the  decision  of  the  cir- 
cuit court  of  appeals  in  placing  the  line  t-g-h-W  on  its 
diagram,  and  that  there  is  nothing  in  the  decisions  of 
either  appellate  courts,  construed  in  the  light  of  the 
facts  and  contentions  of  the  respective  parties,  which 
on  final  analysis  justifies  the  assertion  that  it  was 
ever  intended  that  end-line  planes  should  be  extended 
backward  in  the  direction  of  the  upward  course  of  the 
vein  beyond  surface  limits  so  as  to  embrace  a  part  of 
the  apex  of  the  vein  found  in  another  location.  Such 
an  interpretation  would  be  in  direct  antagonism  to 
the  doctrine  announced  in  the  Del  Monte  case,  decided 
at  the  same  term,  and  referred  to  in  the  opinion  in 
Walrath  v.  Champion  M.  Co.,*^  as  well  as  being  op- 
posed to  numerous  previous  decisions  of  that  court 
on  cognate  subjects. 

We  have  explained  in  a  previous  note  the  reason 
why  no  cross-appeal  was  taken  by  the  Champion  com- 
pany.^*   We  shall  have  occasion  to  recur  to  the  deci- 

42  171  U.  S.  307,  18  Sup.  Ct.  Eep.  909,  43  L.  ed.  176,  19  Morr.  Min. 
Rep.  410. 

43  We  have  devoted  so  much  space  to  the  discussion  of  this  case 
for  two  reasons:  the  importance  of  the  subject  considered,  and  the 
fact  that  no  case  with  which  the  author  has  ever  been  connected  has 
caused  so  much  comment  at  the  bar.  We  have  been  repeatedly  called 
upon  to  supply  the  briefs  used  in  the  case,  answer  inquiries,  and  make 


1381  OTHER    ILLUSTRATIONS    OP    THE    PRINCIPLES.  §  594 

sion  in  the  Walrath-Champion  case  in  presenting  the 
more  modern  cases.  As  an  ultimate  conclusion  to  be 
deduced  from  a  consideration  of  the  later  development 
of  the  law  we  deferentially  submit  that  the  case  was 
erroneously  decided  in  the  trial  court.  No  cross- 
appeal  having  been  taken,  we  are  not  at  liberty  to 
criticise  the  appellate  courts  in  not  correcting  what  ap- 
pears to  us  to  be  a  mistake  of  the  trial  court. 

§  594.  Other  illustrations  of  the  application  of  the 
principles  discussed. — A  controversy  arose  in  Montana 
between  the  St.  Louis  Mining  and  Milling  Company, 
owning  the  St.  Louis  claim,  and  the  Montana  Mining 
Company,  owning  the  Nine  Hour,  which  involved  the 
consideration  of  the  extralateral  rights  of  the  former 
company  on  what  we  call  a  secondary  vein.  The  case 
came  before  the  circuit  court  of  appeals  on  cross-ap- 
peals, which  are  separately  reported,"  both  of  which 
opinions  are  to  be  consulted  in  analyzing  the  case  and 
arriving  at  an  understanding  of  that  branch  now  under 
consideration. 

We  have  heretofore  discussed  this  case  when  dealing 
with  the  subject  of  the  extralateral  right  on  a  vein 
entering  and  passing  out  of  the  same  side-line,  and  have 

explanations  as  to  the  effect  of  this  decision.  The  effect  claimed  for 
it  by  some  members  of  the  bar  is  appalling.  Perhaps  the  explanation 
here  given  may  be  of  some  use  in  determining  the  value  of  the  case  as 
a   precedent. 

44  Montana  M.  Co.,  Ltd.,  v.  St.  Louis  M.  &  M.  Co.,  102  Fed.  430,  42 
C.  C.  A.  415,  20  Morr.  Min.  E^p.  507;  St.  Louis  M.  &  M.  Co.  v.  "Mon- 
tana M.  Co.,  104  Fed.  664,  44  C.  C.  A.  120,  56  L.  E.  A,  725,  21  Morr. 
Min.  Eep.  57. 


594  EXTRALATERAL   RIGHTS   UNDER  ACT    OF   1872. 


1382 


tliere  given  an  illustration  (figure  65),*^  which  we 
herewith  reproduce  for  the  purpose  of  convenience. 
The  circuit  court   of  appeals   defined   the   boundary 


Figure  65. 
planes  on  the  secondary  vein  by  establishing  planes 
parallel  to  the  end-lines  at  the  points  on  the  side-line 
where  the  vein  entered  and  departed,  resulting  in  the 
planes  a-b  and  c-d,  citing  as  authority  for  this  method 
of  determining  the  extralateral  rights  the  cases  of 
Iron  Silver  Mining  Co.  v.  Elgin  M.  &  S.  Co./^  and  Wal- 
rath  V.  Champion  M.  Co.,  heretofore  discussed.*^ 

This  solution  of  the  problem  seems  to  be  the  only 
possible  one  in  the  light  of  these  decisions  of  the  su- 
preme court  of  the  United  States.  It  has  been  said, 
however,  that  the  rule  announced  by  the  circuit  court 

45  Ante,  §  584. 

46  118  U.  S.  196,  6  Sup.  Ct.  Rep.  1177,  30  L.  ed.  98,  15  Morr.  Min. 
Rep.  641. 

47  171  U.  S.  293,  18  Sup.  Ct.  Rep.  909,  43  L.  ed.  170,  19  Morr.  Min. 
Rep.  410. 


1383  OTHER    ILLUSTRATIONS    OF    THE    PRINCIPLES.  §  594 

of  appeals  in  the  Wal  rath-Champion  case,  affirmed  by 
the  supreme  court  of  the  United  States,  applied  to  the 
facts  of  the  St.  Louis-Montana  case,  would  give  to  the 
St.  Louis  company  all  that  segment  of  the  secondary 
vein  lying  within  the  extended  end-line  planes  on  the 
original  lode — that  is  the  planes  1-2-3  and  4-5-6 — not- 
withstanding the  fact  that  the  apex  only  extends  in 
that  claim  from  A  to  C." 

In  the  preceding  section  we  have  fully  explained 
what  we  understand  to  be  the  proper  interpretation  of 
the  decision  of  the  circuit  court  of  appeals  in  the  Wal- 
rath  case,  from  which  it  appears  that  no  such  deduc- 
tion as  claimed  can  be  made.  The  fact  that  the  same 
court  in  the  St.  Louis  case  did  not  apply  any  such  doc- 
trine as  that  above  suggested  is  a  circumstance  of  the 
highest  corroborative  value  supporting  our  view  that 
the  decision  in  the  Walrath  case  was  never  intended  to 
sanction  any  such  doctrine.  If  it  had,  it  would  have 
followed  it,  and  it  would  have  been  in  duty  bound  to  do 
so,  as  it  had  received  the  approval  of  the  supreme  court 
of  the  United  States.  As  it  is,  the  court  of  appeals 
cites  the  Walrath  case  as  authority  for  its  decision  in 
the  St.  Louis  case. 

In  the  final  decision  rendered  by  the  circuit  court  of 
appeals  in  this  litigation  the  court  asserts  that  the 
extralateral  right  on  this  secondary  vein  as  there  de- 
fined has  been  approved  by  the  supreme  court  of  the 
United  States.*'' 

48  "A  Problem  in  Mining  Law,"  Harvard  Law  Review,  Dec,  1902, 
wherein  the  writer  says:  "It  may  have  been  an  oversight  on  the  part 
of  the  attorneys  for  the  St.  Louis  that  they  did  not  cite  the  Walrath 
ease  and  did  not  claim  any  more  than  the  court  gave  them.  But  that 
would  not  justify  the  court  in  disregarding  a  principle  which  it  had 
expressly  held  to  be  controlling." 

49  Montana  M.  Co.  v.  St.  Louis  M.  &  M.  Co.,  183  Fed.  51,  61,  105 
C.  C.  A.  343. 


§  594  EXTRALATERAL   RIGHTS   UNDER  ACT   OF   1872, 


1384 


Several  interesting  cases  have  arisen  in  Colorado 
since  the  decision  in  the  Walrath-Champion  case, 
which  involve  the  question  here  discussed.  The  first 
of  these  in  chronological  order  is  the  case  of  Ajax 
Gold  Mining  Co.  v.  Hilkey,^°  the  facts  of  which  are 
illustrated  by  a  diagram  accompanying  the  opinion  of 
the  court,  which  we  herewith  reproduce  as  figure  82a. 


FiGTJEE  82a. 
The  Ajax  company  owned  the  Victor  Consolidated 
claim.  The  discovery  vein  B-B'  crossed  the  southerly 
end  line  and  proceeding  in  a  northerly  direction  passed 
out  of  the  east  side-line.  The  secondary  vein  A-A' 
passed  diagonally  through  the  claim  crossing  both  side- 
lines. The  defendant  Hilkey  owned  the  Triumph  ad- 
joining the  Victor  on  the  west.  The  secondary  vein  in 
the  Victor  on  its  downward  course  entered  underneath 
the  surface  of  the  Triumph,  and  the  controversy  was 
over  the  ore  bodies  underneath  the  surface  of  this 
claim.  The  Ajax  company  claimed  that  its  extralateral 
right  in  the  secondary  vein  was  to  be  defined  by  the  ap- 
plication of  the  plane  D-D'  parallel  to  the  end-line  on 
the  original  vein  1-4  at  the  point  where  the  vein  crossed 
the  west  side-line  of  the  Victor.  The  Triumph  owner 
contended  that  as  the  extralateral  right  on  the  original 

50  31   Colo.   131,  102  Am.  St.  Eep.  23,  72  Pae.  447,  22  Morr.  Min. 
Eep.  585,  62  L.  E.  A.  555. 


1385  OTHER    ILLUSTRATIONS    OF    THE    PRINCIPLES.  §  594 

lode  was  to  be  defined  and  limited  by  the  plane  C-C 
drawn  through  the  point  where  the  discovery  vein 
passed  out  of  the  east  side-line — the  plane  being 
parallel  to  the  south  end-line — that  no  extralateral 
right  in  the  secondary  vein  could  extend  northerly 
beyond  the  plane  C-C/ 

The  court  upheld  the  contention  of  the  Ajax  com- 
pany applying  the  plane  D-D'.  In  rendering  its  deci- 
sion it  said  in  part: — 

In  the  Walrath  case,  which  was  twice  before  the 
circuit  court  of  appeals  ^^  (63  Fed.  552,  19  C.  C.  A. 
323,  72  Fed.  978)  and  once  before  the  supreme 
court  of  the  United  States,  there  are  some  expres- 
sions in  the  opinions  of  the  circuit  court  of  ap- 
peals from  which,  taken  alone,  it  might  be  inferred 
that  under  facts  like  those  here  present  the  owner 
of  a  claim  would  have  extralateral  rights  in  the 
discovery  vein  even  beyond  the  point  where,  on  its 
strike,  it  leaves  the  side-line ;  and  that  the  bounding 
planes,  within  which  such  rights  are  to  be  exercised, 
must  be  drawn  through  the  two  end-lines.  But  ap- 
pellant makes  no  such  contention  here,  and  is  con- 
tent with  extralateral  rights  in  the  discovery  vein 
only  up  to  the  point  of  its  departure  from  the  east 
side-line,  so  that  for  our  present  argument  we 
assume  that  to  be  the  true  doctrine." 

After  placing  the  responsibility  for  the  rule  applied 
by  it  upon  the  concession  of  counsel,  who  declined 
to  claim  more  of  the  vein  than  the  application  of  this 
rule  would  award  to  his  clients,  the  court  proceeds  to 
enunciate  principles  which  clearly  demonstrate  that  it 

51  This  is  a  mistake.  The  opinion  in  63  Fed.  552,  18  Morr.  Min. 
Eep.  113,  is  that  of  the  trial  court.  The  circuit  court  of  appeals 
handed  down  only  one  opinion— 72  Fed.  978,  19  C.  C.  A.  323. 

62  72  Pac.  449. 


§  594  EXTEALATERAL   RIGHTS   UNDER  ACT   OF   1872.  1386 

was  the  only  rule  which  could  possibly  be  applied 
without  violating  some  of  the  cardinal  principles  estab- 
lished by  the  courts  of  last  resort.  We  quote  further 
from  the  opinion  of  the  court: — 

The  end-lines  constitute  a  barrier,  beyond  which 
a  locator  cannot  follow  a  vein  on  its  strike,  whether 
it  be  a  discovery  or  secondary  vein;  and  they  also 
limit  the  bounding  planes  within  which  his  extra- 
lateral  rights  are  to  be  exercised  in  following  such 
vein  on  its  dip.  In  exercising  such  extralateral 
rights  the  locator  cannot  in  any  case  pursue  the  vein 
on  its  dip  beyond  the  bounding  planes  drawn  through 
the  end-lines The  extent  of  the  right  de- 
pends upon  the  length  of  the  apex,  and  the  extra- 
lateral  rights  are  measured  not  necessaril}^  by  the 
end-lines,  and  only  so  when  the  vein  passes  across 
both  end-lines,  but  by  bounding  planes  drawn 
parallel  to  the  end-lines  passing  through  the  claim  at 
the  points  where  it  enters  into  and  departs  from  the 
same.  It  would  seem,  therefore,  necessarily  to  fol- 
low that  the  extralateral  right  depends  inter  alia 
upon  the  extent  of  the  apex  within  the  surface 
lines,  and,  while  the  end-lines  of  the  claim  as  fixed 
by  the  location  are  the  end-lines  of  all  veins  apexing 
within  its  exterior  boundaries,  the  planes  which 
bound  such  rights  of  different  veins  may  be  as  dif- 
ferent as  the  extent  of  their  respective  apices, 
though  all  such  planes  must  be  drawn  vertically 
downward  parallel  with  the  end-lines.  It  makes  no 
difference  in  what  portion  of  the  patented  claim  the 
apex  is.  Its  extralateral  rights  under  this  rule  can 
easily  be  ascertained. 

The  court  was  of  the  opinion  that  the  rule  thus 
enunciated  was  deducible  from  the  Niagara-Black 
Eock  case,"  the  decision  in  Tyler  v.  Last  Chance  M. 

64  Fitzgerald  v.  Clark,  17  Mont.  100,  52  Am.  St.  Eep.  665,  42  Pac. 


1387  OTHER    ILLUSTRATIONS    OF    THE    PRINCIPLES.  §  594 

Co.,"  and  from  the  language  of  Judge  liallett  in  the 
Del  Monte  case.^^ 

The  opinion  of  Justice  Brewer  in  the  Del  Monte 
case"  is  also  said  by  the  supreme  court  of  Colorado  to 
be  authority  for  the  conclusions  reached  by  it,  which 
are  briefly  summed  up  at  the  end  of  the  opinion  as 
follows: — 

Our  conclusion  is  that  for  all  veins,  both  discovery 
and  secondary  of  a  patented  claim,  the  owner  has 
extralateral  rights  at  least  for  so  much  thereof  as 
apex  within  the  surface  lines;  that  such  rights  as 
to  secondary  veins  are  not  confined  to  such  veins  as 
apex  within  the  same  segment  of  the  claim  in  which 
the  apex  of  the  discovery  vein  exists;  and  while  the 
end-lines  of  the  location  as  fixed  and  described  in  the 
patent  are  the  end-lines  of  all  veins  apexing  within 
the  surface  boundaries,  and  may  constitute  the 
bounding  planes  for  such  extralateral  rights,  and  in 
no  case  can  the  locator  pursue  the  vein  on  its  dip 
outside  the  surface  lines  beyond  such  planes  con- 
tinued in  their  own  direction  until  they  intersect 
such  veins,  yet  these  bounding  planes,  which  in  all 
cases  must  be  drawn  parallel  to  the  end-lines,  need 
not  be  coincident/® 

Subsequent  to  the  rendition  of  this  decision,  the 
same  court,  in  the  case  of  Jefferson  Min.  Co.  v.  An- 

273,  30  L.  R.  A.  803,  affirmed  in  171  U.  S.  92,  18  Sup.  Ct.  Eep.  941, 
42  L.  ed.  87. 

55  71  Fed.  848. 

•6  66  Fed.   212. 

BT  171  U.  S.  55,  18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72. 

58  Ajax  Gold  Min.  Co.  v.  Hilkey,  31  Colo.  131,  102  Am.  St.  Rep.  23, 
72  Pac.  447,  450,  62  L.  R.  A.  555,  22  Morr.  Min.  Rep.  585.  In  a  later 
case  to  be  presently  discussed  the  same  court  said:  "But  the  supreme 
court  of  the  United  States  has  gone  further,  and  said  that  these  bound- 
ing planes  must  be  coincident  with  the  planes  of  tlie  end-lines."  75 
Pac,  at  p.  1075. 


§594 


EXTRALATERAL   RIGHTS   UNDER  ACT   OF   1872. 


1388 


choria-Leland  M.  &  M.  Co.,^®  was  called  upon  to  con- 
sider a  state  of  facts  involving  the  same  principles  dis- 
cussed and  decided  in  the  Ajax-Hilkey  case.  We  sub- 
mit a  diagram  of  the  Jefferson-Anchoria-Leland  case 
(figure  82b),  based  upon   the    one   accompanying  the 


ANCHOR 


seniOR      LOCflTion 


FiGUEE  82b. 
opinion  of  the  court  slightly  elaborated.  The  An- 
choria-Leland  company  owned  the  Anchor,  and  the 
Jefferson  company  the  Mattie  L.  The  Anchor  was 
the  senior  of  the  claims  both  as  to  location  and  patent. 
The  discovery  vein  Y-Z-Y  in  the  Anchor  crossed  both 
end-lines,  although  the   fact   does   not  appear  on  the 


59  32  Colo.  176,  75  Pac.  1070,  64  L.  R.  A.  925. 


1389  OTHER    ILLUSTRATIONS    OF    THE    PRIXCIPLES.  §  594 

diagram  in  the  opinion.  The  secondary  vein  in  the 
Anchor  a-b  crossed  two  side-lines.  Both  the  discovery 
and  secondary  veins  in  the  Mattie  L.  crossed  the  lines 
located  as  side-lines.  The  vein  a-b  was  secondary  in 
both  locations.  The  controversy  arose  over  the  under- 
ground parts  of  the  secondary  vein  lying  underneath 
and  within  the  conflicting  surface  area  of  both  claims — 
i.  e.,  within  the  parallelogram  c-x-e-f .  The  contention  of 
the  Jefferson  company  was  that  the  Anchoria-Leland 
rights  in  the  secondary  vein  a-b  should  be  defined  by 
constructing  a  plane  parallel  to  the  end-line  (e-f),  at 
the  point  X,  where  the  secondary  vein  passed  out  of 
the  north  side-line  of  the  Anchor.  The  Anchoria- 
Leland  Co.  claimed  a  right  to  all  the  ore  in  the  sec- 
ondary vein  underneath  the  Anchor  surface.  The 
court  upheld  the  claim  of  the  Anchoria-Leland  on  the 
theory  that  the  question  involved  the  intralimital 
rather  than  the  extralateral  rights  of  the  Anchor  claim, 
and  that  claim,  being  senior  in  point  of  time,  secured 
all  underground  parts  of  the  secondary  vein  under- 
neath the  surface,  though  such  parts  extended  beyond 
a  plane  parallel  to  its  end-lines  drawn  at  the  point  on 
the  side  boundary  where  the  apex  of  the  secondary 
vein  crossed  such  boundary  at  the  point  X  and  entered 
the  territory  of  the  junior  claim. 

The  right  of  a  claim  owner  to  the  underground  parts 
of  a  vein  beneath  the  surface  may  in  a  sense  be  referred 
to  as  intralimital.  A  prior  locator  on  the  dip  of  a  vein 
without  any  part  of  the  apex  being  within  his  bound- 
aries may  be  said  to  have  an  intralimital  right  to 
the  underground  parts  of  the  vein,  and  may  defend 
such  right  as  against  everyone  except  the  owner  of  a 


§  594  EXTRALATERAL   RIGHTS   UNDER  ACT   OP   1872.  1390 

location  properlj^  including  the  apex.  But  such  intra- 
limital  right  fades  away  in  the  presence  of  one  prop- 
erly locating  on  the  apex  of  the  vein.  So  where  the 
apex  of  a  vein  passes  through  an  end-line  and  a  side- 
line of  one  claim  into  another,  the  inquiry  involves  not 
only  the  intralimital  rights  of  one,  but  also  the  extra- 
lateral  rights  of  the  other.  For  illustration  take  the 
Niagara-Black  Rock  case  shown  on  figure  75.*^°  The 
Black  Rock  was  the  older  claim  with  part  of  the  apex. 
The  ore  bodies  in  dispute  were  underneath  the  Black 
Rock  surface  beyond  the  point  where  the  vein  passed 
out  of  the  side-line  common  to  the  two  claims.  Such 
ore  bodies  were  in  a  sense  intralimital  to  the  Black 
Rock,  but  extralateral  to  the  Niagara.  As  we  have 
heretofore  noted,  the  state  court  and  the  supreme  court 
of  the  United  States  in  effect  denied  to  the  Black  Rock 
any  intralimital  rights  on  that  portion  of  the  vein 
underneath  its  surface  extending  beyond  the  point 
where  the  apex  crossed  the  side-line,  awarding  such 
underground  parts  to  the  Niagara — the  junior  claim — 
under  its  extralateral  right. 

In  the  case  of  Davis  v.  Shepherd,  decided  by  the 
supreme  court  of  Colorado  prior  to  its  decisions  in  Ajax 
V.  Hilkey  and  Jefferson  v.  Anchoria-Leland,  the  court 
applied  the  principle  of  the  Niagara-Black  Rock  case 
to  the  original  vein — apexing  for  a  long  distance  in  the 
junior  claim  and  passing  into  the  senior  claim.  The 
facts  of  this  case  may  be  illustrated  by  a  diagram  pre- 

6«  Ante,   §  591. 


1391 


OTHER    ILLUSTRATIONS    OF    THE    PRINCIPLES.  §  594 


pared  from  the  record  in  the  case,  which  we  herewith 
reproduce  as  figure  82c. 


Figure  82c. 

The  Fairmount  195A  was  the  prior  location,  ha\^ng 
been  patented  prior  to  the  location  of  the  Refugee. 
The  apex  of  the  vein  was  in  the  Refugee  for  the  greater 
part  of  the  length  of  the  claim— a  small  segment  of  the 
apex  being  found  in  the  corner  of  the  Fairmount  enter- 
ing across  a  side-line  and  passing  out  of  an  end-line. 
The  controversy  arose  over  ore  bodies  stoped  out  by 
the  owners  of  the  Fairmount,  being  in  that  part  of  the 
vein  having  the  apex  within  the  Refugee.     The  court 


§  594  EXTRALATERAL   RIGHTS   UNDER  ACT   OF   1872.  1392 

held  that  all  that  part  of  the  vein  which  apexed  without 
the  boundaries  of  the  Fairmount  was  not  a  part  of  that 
property. 

Assuming  the  facts  to  be  correctly  portrayed  on 
figure  82c:  The  extralateral  right  of  the  Fairmount 
would,  upon  the  principles  heretofore  discussed,  be 
defined  by  the  planes  a-b  and  c-d.  The  extralateral 
right  of  the  Refugee  would  be  defined  by  the  plane  d-e 
and  the  west  end-line  plane,  assuming  that  the  apex  did 
not  extend  to  or  cross  the  east  end-line.  The  triangle 
X  would,  on  this  hypothesis,  fall  to  the  Fairmount  by 
gravity  as  a  prima  facie  intralimital  right,  owing  to 
the  difference  in  direction  of  the  end-line  planes  of  the 
two  properties.  If  we  may  assume  that  the  vein 
crossed  both  end-lines  of  the  Refugee  applying  the 
principles  announced  in  the  Stemwinder  cases  dis- 
cussed in  a  subsequent  section,®^  the  extralateral  right 
of  the  Refugee  would  be  defined  by  the  extension  of  its 
two  end-line  planes  subtracting  therefrom  the  seg- 
ment of  the  vein  pertaining  to  the  Fairmount  defined 
by  the  planes  a-b  and  c-d. 

If  the  right  of  a  senior  claimant  on  an  original  vein 
is  thus  limited — and  that  it  is  so  limited  is  now  well 
settled — we  cannot  understand  by  what  process  of 
reasoning  the  courts  may  award  a  greater  right  upon 
a  secondary  vein. 

In  deciding  the  Jeff erson-Anchoria-Lel and  case,  the 
court  referred  to  its  ruling  in  Ajax  Gold  Min.  Co.  v. 
Hilkey,  supra,  but  held  that  it  was  inapplicable,  because 
the  rule  followed  in  that  case  was  so  limited  by  reason 
of  the  fact  that  the  counsel  for  Ajax  company  was  con- 
tent to  accept  it,  and  did  not  ask  for  any  part  of  the 
vein  beyond  what  the  application  of  the  rule  there 
announced  would  give  his  clients. 

61  Post,  §  596. 


1393  OTHER    ILLUSTRATIONS    OF    THE    PRINCIPLES.  §  594 

"With  all  possible  deference  to  the  distinguished  court 
which  rendered  the  two  decisions,  both  of  which  were 
written  by  the  same  judge,  we  submit  that  the  rule  in 
the  Ajax-Hilkey  case  is  consistent  with  the  decisions  of 
the  supreme  court  of  the  United  States  in  the  Del 
Monte  case  and  the  Niagara-Black  Rock  case,  and  the 
prior  decision  of  the  supreme  court  of  Colorado  in 
Davis  V.  Shepherd.  If  any  support  can  be  found  in 
the  adjudicated  cases  for  the  rule  laid  down  in  the 
Jefferson- Anchoria  case,  it  is  in  what  we  conceive  to  be 
a  misinterpretation  of  the  decisions  in  the  Wal rath- 
Champion  case,  the  doctrine  of  which  the  Colorado 
court  in  the  Jefferson-Anchoria-Leland  case  held  it 
was  not  necessary  to  invoke. 

The  application  of  the  doctrine  of  the  Stemwinder 
cases,"  together  with  the  support  which  may  be  drawn 
from  the  Del  Monte  case®^  and  the  Niagara-Black  Rock 
case,^*  would  certainly  have  given  to  the  Mattie  L.  the 
ore  bodies  within  the  parallelogram  (figure  82b)  X-e- 
f-c,  deducting  the  small  triangle  c-k-n,  which  was  out- 
side of  and  beyond  the  west  side-end  boundary  of  the 
Mattie  L. 

An  extrajudicial  suggestion  has  been  made  to  the 
effect  that  the  extralateral  right  of  the  Mattie  L.  on  the 
vein  a-b  should  be  defined  by  the  plane  s-s'  drawn 

62  Bunker  Hill  &  S.  M.  &  M.  Co.  v.  Empire  State-Idaho  M.  &  D. 
Co.,  109  Fed.  538,  547,  48  C.  C.  A.  665,  21  Morr.  Min.  Rep.  317,  134 
Fed.  268;  121  Fed.  973,  58  C.  C.  A.  311,  22  Morr.  Min.  Rep.  560; 
S.  C,  on  appeal,  131  Fed.  591,  596,  66  C.  C.  A.  99;  appeal  dismissed, 
200  U.  S.  613,  26  Sup.  Ct.  Rep.  754,  50  L.  ed.  620;  certiorari  denied, 
200  U.  S.  617,  26  Sup.  Ct.  Rep.  754,  50  L.  ed.  622. 

63  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  &  M.  Co.,  171  U.  S. 
55,  18  Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370. 

64  Fitzgerald  v.  Clark,  17  Mont.  100,  52  Am.  St.  Rep.  665,  42  Pac. 
273,  30  L.  R.  A.  803;  Clark  v.  Fitzgerald,  171  U.  S.  92,  18  Sup.  a. 
Eep.  941,  43  L.  ed.  87. 

Lindley  on  M. — 88 


§  594  EXTRALATERAL   RIGHTS   UNDER  ACT   OF  1S72.  1394 

through  the  point  X  parallel  to  the  Mattie  L.  west  side- 
line, upon  the  ''free-apex"  theory.  In  our  opinion, 
however,  the  suggestion  is  opposed  to  the  doctrine 
stated  in  a  subsequent  section,^®  where  there  are  con- 
flicting surface  areas  embracing  the  same  apex.  In 
such  cases  the  formula  for  determining  the  extra- 
lateral  right  of  a  junior  apex  claimant  may  be  stated 
as  follows :  Construct  extralateral  right  planes  on  the 
junior  claim  as  if  there  were  no  conflict,  subtract  the 
segment  of  the  vein  to  which  the  senior  is  entitled. 
The  remainder  belongs  to  the  junior  claim.  If  the 
extralateral  right  of  a  senior  claimant  on  the  original 
vein  is  to  be  determined  by  the  length  of  apex  within 
the  claim,  and  this  is  the  rule  clearly  established  in  the 
Niagara-Black  Eock  case,  it  can  hardly  be  plausibly 
urged  that  greater  rights  should  be  awarded  upon  a 
secondary  vein.  "We  think  the  decision  in  Ajax  M.  Co. 
V.  Hilkey  states  the  correct  rule.®^ 

It  will  be  borne  in  mind  that  the  Del  Monte,  the 
Niagara-Black  Eock  and  the  Walrath-Champion  cases 
were  decided  by  the  supreme  court  of  the  United 
States  at  the  same  term  and  within  eight  days  of  each 
other.  It  is  certainly  not  to  be  inferred  that  the  Wal- 
rath-Champion case  was  intended  by  the  court  to  over- 
rule or  qualify  the  epoch-making  decisions  in  the  other 

65  §  596. 

66  Mr.  Costigan,  in  his  work  on  "Mining  Law,"  entertains  the  same 
view  as  the  author  as  to  the  decision  in  the  Jefferson-Anehoria- 
Leland  case.  Costigan,  p.  441,  note  112.  Mr.  Morrison,  in  the  four- 
teenth edition  of  his  "Mining  Rights,"  inclines  to  the  view  that  Ajax 
V.  Hilkey  was  wrongly  decided,  and  that  Jefferson  v.  Anchoria-Leland 
stated  the  correct  rule.  Morrison  Min.  Rights,  14th  ed.,  203.  Mr. 
Arnold,  in  an  elaborate  discussion  of  this  case  found  in  volume  22, 
Harvard  Law  Review,  pp.  339,  343,  349,  arrives  at  the  same  conclusion 
as  expressed  by  the  author. 


1395 


OTHER    ILLUSTRATIONS    OF    THE    PRINCIPLES. 


§594 


two  cases.     The  opinion  in  the  "Walrath  case  negatives 
any  such  intent. 

In  the  case  of  Work  M.  &  M.  Co.  v.  Doctor  Jack  Pot 
M.  Co.,  decided  by  the  circuit  court  of  appeals  for  the 
eighth  circuit,"^  the  question  of  extralateral  rights  on 
secondary  veins  was  directly  involved.  The  facts  of 
the  case  may  be  illustrated  by  a  diagram  prepared 
from  the  record  in  the  case  (figure  82d). 


Figure  82d. 
The  net  area  of  the  Lucky  Corner  as  patented  em- 
braced a  surface  in  form  resembling  a  triangle — delin- 
eated on  figure  82d  by  the  heavier  black  line.  It  was 
located  originally  in  the  form  indicated  by  the  dotted 
lines,  practically  all  of  which  were  laid  upon  adjoining 
claims.  The  application  for  patent  and  the  patent 
itself  described  the  periphery  of  the  claim  as  located 
and  excepted  the  conflicts  with  other  claims.  The 
end-lines  on  the  discovery  vein  as  located  were  parallel. 
There  were  two  secondary  veins  practically  parallel 
to  each  other  in  the  shape  of  crescent,  neither  of  which 
were  shown  to  have  crossed  either  end-line  of  the  clairn 
as  located.    Their  position  is  shown  approximately  on 

67  194  Fed.  620. 


594 


EXTRALATERAL   RIGHTS   UNDER  ACT   OF   1872. 


1396 


figure  82d.  The  controversy  arose  over  the  ore  bodies 
in  the  secondary  vein  underneath  the  Little  Clara. 
The  court  applied  planes  parallel  to  the  end-lines  on 
the  discovery  vein  at  the  points  where  the  secondary 
veins  terminated  within  the  location  substantially  as 
indicated  on  the  figure.*'^^ 

The  court  followed  the  rule  announced  by  the 
supreme  court  of  Colorado,  in  the  Ajax-Hilkey  case, 
quoting  at  length  from  the  opinion,  but  made  no  refer- 
ence to  the  decision  in  Jefferson  M.  Co.  v.  Anchoria- 
Leland  M.  &  M.  Co. 

As  we  have  heretofore  observed,  the  question  under 
consideration  presents  but  little  serious  difficulty  if  the 

secondary  veins  follow 
directions  which  ren- 
der it  possible  to  con- 
struct end-line  planes 
parallel  to  the  original, 
so  as  to  cross  the  sec- 
ondary veins  at  any 
angle.  This  may  be  il- 
lustrated in  figure  83. 

Were  it  not  for  the 
existence  of  the  origi- 
nal vein  a-b  with  its  end-line  planes,  the  extralateral 
right  on  the  secondary  vein  e-f  as  it  crosses  the  side  or 
side-end  lines  would  be  defined  by  a  prolongation  of 
the  side-end  lines.*'^  But  as  there  can  be  but  one  set  of 
end-lines  which  bound  the  extralateral  rights  on  all 

S7a  There  was  a  construction  in  this  case  that  there  was  no  discovery 
Tein  in  fact  as  indicated  on  the  diagram  and  the  case  involved  the  ques- 
tion of  the  conclusiveness  of  the  patent  as  to  the  position  of  the  apex  of 
the  vein  within  the  surface  boundaries.  We  will  consider  this  subject 
later,  post,  §  780. 

68  Ante,  §§  586-589. 


Figure  83. 


1397 


OTHER    ILLUSTRATIONS    OF    THE    PRINCIPLES. 


§594 


veins,  the  side-end  line 
rule  must  yield  in  this 
instance. 

Let  US  suppose,  how- 
ever, that  a  vein  crosses 
the  originally  discov- 
ered vein  and  the  claim 
at  right  angles,  as  il- 
lustrated on  figure  84 
(the  vein  d-c). 

It    is    manifest    that  FiGURE  M. 

the  end-line  plane  on  the  original  vein  cannot 
plied  so  as  to  cross  the  secondary  vein  at  any 
The  plane  so  constructed  would  be  parallel  or 
dent  with  the  course  of  the  secondary  vein, 
the  locator  under  such  circumstances  have  any 
lateral  ris-ht  on  the  secondarv  vein? 


be  ap- 
angle. 
coinci- 
Would 
extra- 


COSMOPOLITAN 

CJ='3tentedJ 


MINE 


FlGLKE   85. 


§  594  EXTRALATERAL   RIGHTS  UNDER  ACT   OF   1872.  1398 

The  case  of  Cosmopolitan  Mining  Co.  v.  Foote,®' 
decided  by  Judge  Hawley,  presents  a  situation  some- 
what similar  to  the  one  presented  on  figure  84,  the 
facts  of  which  are  illustrated  on  figure  85. 

While  there  was  a  sharp  controversy  over  the  facts, 
the  court  found  that  the  original  discovery  vein  in  the 
Badger  was  east  and  west.  The  apex  of  the  sec- 
ondary vein  was  north  and  south,  close  to  the  west 
boundary  of  the  Cosmopolitan,  but  to  some  extent 
entirely  within  the  Badger.  The  controversy  was 
over  the  vein  underneath  the  Cosmopolitan  surface. 
The  Badger  location  was  originally  located  on  the 
assumption  that  the  discovery  vein  ran  lengthwise  of 
the  location,  but  the  court  found  that  its  course  was 
crosswise  of  the  claim,  making  the  located  side-lines 
the  end-lines,  and  as  such  determined  the  extralateral- 
right  planes  on  all  lodes.  As  it  was  impossible  to 
apply  these  side-end  line  planes  to  the  apex  of  the 
secondary  or  Cosmopolitan  vein,  so  as  to  grant  the 
right  to  the  vein  underneath  the  Cosmopolitan  sur- 
face, judgment  passed  for  the  Cosmopolitan  company. 

Under  such  state  of  facts  it  is  impossible  to  conceive 
upon  what  principle  any  extralateral  right  could  be 
granted  on  the  cross  or  secondary  vein  without  estab- 
lishing two  sets  of  end-line  planes,  which,  as  we  have 
heretofore  seen,  is  not  permissible. 

Another  complication  suggests  itself.  Suppose  the 
original  discovery  vein  enters  and  passes  out  of  the 
same  line,  located  as  a  side-line,  as  does  the  secondary 
vein,  shown  on  figure  65,  supra.  If  the  doctrine  of 
Catron  v.  01d,^°  discussed  in  another  section,  should 
obtain — viz.,  that  there  would  be  no  extralateral  right 
on  this  vein — under  such  conditions  would  there  be 

68  101  Fed.  518,  20  Morr,  Min.  Rep.  497. 
70  Ante,  §  584, 


1399  NONPARALLEL    EKD-LINES.  §  595 

any  extralateral  riglit  on  a  secondary  vein  subse- 
quently discovered  passing  through  the  claim  length- 
wise and  through  the  lines  located  as  end-lines  by  the 
locator?  Does  the  defect  in  the  location  of  the  orig- 
inal vein  inhibit  the  extralateral  right  on  the  one 
subsequently  discovered,  or  would  the  discovery  of 
the  secondary  vein  ^vith  its  regular  course  confer  an 
extralateral  right  on  the  original  vein? 

One  thing  seems  quite  certain — the  law,  as  at 
present  construed,  may  compel  the  inquiry,  where  two 
veins  are  found  to  exist  within  a  claim,  as  to  which 
one  was  discovered  first — that  is,  which  vein  was  the 
basis  of  the  location — and  there  exists  to  this  extent 
a  distinction  between  the  two  classes  of  veins.  In 
other  respects  they  are  of  equal  dignity. 

§  595.  Extralateral  rights  on  other  lodes  conferred 
by  the  act  of  1872  on  owners  of  claims  previously 
located  where  the  end-lines  are  not  parallel. — Where  a 
location  made  or  a  patent  issued  under  the  act  of  1866 
has  parallel  end-lines,  and  the  location  is  subsequently 
shown  to  contain  veins  other  than  the  one  upon  which 
the  location  was  based,  the  principles  heretofore  dis- 
cussed and  applied  to  similar  conditions  arising  under 
the  act  of  1872  have  operative  force.  This  class  of 
locations  presents  no  more  serious  difficulty  than  those 
made  with  parallel  end-lines  under  the  later  law. 

But  where  the  locations  made  under  the  act  of  1866 
are  irregular  in  form,  with  nonparallel  lines  crossing 
the  lode,  the  situation  is  more  complex  and  difficult  of 
solution. 

If  we  assume  the  correctness  of  the  principle  applied 
by  the  supreme  court  of  California  in  the  case  of  Argo- 
naut Mining  Company  v.  Kennedy  Mining  Company,'^ 

Ti  131  Cal.  15,  82  Am.  St.  Rep.  317,  63  Pac.  148,  153,  21  Morr.  Min. 
Eep.   163.     This  case  was   carried  to   the  supreme   court  of   the   United 


§  595  EXTRALATERAL   RIGHTS   UNDER  ACT   OF   1872.  1400 

following  the  suggestions  of  Judge  Field,  discussed  in 
a  previous  section,"  where  it  was  said  that  in  the  case 
of  diverging  end-lines  on  the  original  lode  the  extra- 
lateral  right  might  be  defined  by  the  application  of 
planes  at  right  angles  to  the  course  of  the  vein  con- 
structed at  the  extremities  of  the  vein  within  the  loca- 
tion, these  rectangular  planes  would  become  the  legal 
end-lines  of  the  original  lode,  so  far  as  the  determina- 
tion of  the  extralateral  right  is  concerned.  This 
would  result  in  parallelism,  and  would,  we  suggest, 
permit  the  application  of  the  doctrine  applied  to 
secondary  veins  under  the  act  of  1872,  or,  for  that 
matter,  to  the  act  of  1866,  where  the  located  end-lines 
were  parallel.  The  planes  thus  constructed,  applied 
to  secondary  veins,  would  not  necessarily  be  at  right 
angles  to  the  course  of  such  secondary  veins.  This 
would  rarely,  if  ever,  result  in  applying  the  rule  un- 
der the  act  of  1872. 

Once  conceding  the  correctness  of  the  rectangular 
theory  as  applied  to  the  original  lode  within  a  location 
having  nonparallel  end-lines  under  the  act  of  1866,  it 
would  seem  logical  to  apply  the  same  planes — i.  e., 
those  at  right  angles  to  the  original  lode — to  the  sec- 
ondary veins.  We  would  then  have,  as  we  now  have 
under  the  act  of  1872,  as  construed  by  the  courts,  but 
one  set  of  end-line  planes  which  should  govern  the 
extralateral  rights  upon  all  lodes  found  within  the 
location,  the  essential  requirements  of  the  rule  clearly 
enunciated  and  established  by  the  courts.^* 

There  is,  however,  no  direct  adjudication  as  to  this 
question.     The   supreme  court  of   California   in  the 

states  and  the  judgment  was  affirmed  solely  on  the  ground  of  estoppel, 
without  discussing  other  questions.  Kennedy  M.  &  M.  Co.  v.  Argonaut 
M.  &  M.  Co.,  189  U.  S.  1,  23  Sup.  Ct.  Rep.  501,  47  L.  ed.  685. 

72  Ante,  §  577. 

78  Ante,  §  593. 


1401  CONFLICTING   LODE   LOCATIONS.  §  596 

case  of  Central  Eureka  Min.  Co.  v.  East  Central 
Eureka  Min.  Co.^*  touched  upon  the  subject  arguendo 
as  follows : — 

It  might,  perhaps,  be  contended  with  some  force 
that  as  to  these  other  (secondary)  veins  and  lodes 
which  were  not  embraced  within  the  location,  and 
the  right  to  which  was  for  the  lirst  time  iriven  by 
the  act  of  1872,  the  requirement  as  to  parallelism 
of  end-lines  might  preclude  any  extralateral  right. 

No  secondary  veins  were  involved  in  the  Central 
Eureka  case.  The  language  of  the  court  was  used 
argumentatively  in  reference  to  the  contention  of 
counsel  for  the  East  Central  Eureka.  When  the  case 
reached  the  supreme  court  of  the  United  States,  that 
court  briefly  referred  to  the  question.  Said  the 
court : — 

The  plaintiff  is  not  responsible  for  the  form  of 
the  patent.  It  grants  the  rights  that  would  have 
been  granted  under  the  act  of  1866,  and  the  fact 
that  it  also  purports  to  grant  all  that  would  have 
been  acquired  by  a  location  under  the  act  of  1872 
does  not  impart  an  election  by  the  grantee  to  aban- 
don the  former.  We  do  not  mean  to  disparage  the 
additional  grant,  but  as  pointed  out  by  the  Califor- 
nia court  the  question  before  us  does  not  touch  that 
point.^* 

§  596.  Extralateral  right  where  the  apex  is  found 
in  surface  conflict  between  junior  and  senior  lode  loca- 
tions— Practical  application  of  the  Del  Monte  case. — 

With  the  announcement  of  the  rule  that  a  junior  lode 
locator  may  place  his  lines  upon  or  across  the  lines 
of  a  senior  claim  for  the  purpose  of  acquiring  rights 

74  146  Cal.  147,  79  Pac.  834,  836,  9  L.  E.  A.,  N.  S.,  940. 
T5  East  Central  Eureka  M.  Co.  v.  Central  Eureka  M.  Co.,  204  U.  S. 
266,  271,  27  Sup.  Ct.  Rep.  258,  51  L.  ed.  476. 


596 


EXTRALATERAL   RIGHTS   UNDER  ACT   OF   1872. 


1^02 


not  in  conflict  with  tliose  previously  granted,  and  the 
extension  of  that  rule  to  patented  claims/^  both  min- 
eral and  agricultural,  there  has  arisen  the  necessity  of 
considering  the  result  of  the  doctrine  as  applied  to 
the  determination  of  the  extent  of  the  rights  of  the 
junior  locator.     For  the    purpose    of  this  discussion 

J 


Figure  86. 
we  present  a  diagram  of  the  Del  Monte  case,  as  that 
case  was  presented  to  the  supreme  court  of  the  United 

76  Ante,   §  363a. 


1403  CONFLICTING  LODE  LOCATIONS.  §  596 

States,"  placing  thereon  dotted  lines  representing  the 
extension  of  extralateral-right  planes,  to  which  we 
may  have  occasion  to  refer. 

We  have  already  observed  that,  by  Judge  Hallett's 
decision  in  Del  Monte  Mining  and  Milling  Co.  v.  New 
York  and  Last  Chance  Mining  Co.^*  the  extralateral 
right  of  the  New  York  on  the  vein  was  defined  by  the 
plane  r-z-z-%  parallel  to  the  end-line  plane  f-g-g'. 
Whatever  rights  were  acquired  by  the  Last  Chance, 
by  virtue  of  its  overlapping  location  conflicting  with 
the  New  York,  must  necessarily  be  limited  to  that 
part  of  the  vein  which  was  not  embraced  within  the 
prior  grant. 

The  practical  application  of  the  rule  that  where  a 
vein  crosses  an  end-line  and  a  side-line  extralateral 
rights  are  to  be  defined  by  the  crossed  end-line  plane, 
and  a  plane  parallel  to  it  drawn  at  the  point  where  the 
vein  departs  from  the  side-line,  could  only  be  applied 
to  the  Last  Chance  upon  the  theory  that  the  line  e-i, 
the  northeasterly  line  of  the  prior  conflicting  claim,  the 
New  York,  constituted  a  side-\me  of  the  Last  Chance 
claim  within  the  meaning  of  the  law.  It  was  not  a 
side-line  of  the  location,  as  we  observe  that  the  apex 
crosses  both  end-lines  of  the  claiin,  although  the  south 
end-line  is  for  the  greater  part  of  its  length  on  the 
New  York,  a  prior  claim.  The  line  e-i  was  determined 
by  the  court  not  to  be  an  end-line  of  the  Last  Chance. 
As  to  whether  it  performed  the  function  of  a  side- 
line, the  court  did  not  determine.  Treating  it  for 
argumentative  purposes  as  a  side-line,  the  extralateral 
plane  r-s-s  may  be  hypothetically  constructed.  As 
between  the  New  York  and  the  Last  Chance,  in  the 

T7  171  U.  S.  55,  18  Sup.  Ct.  Rep.  895,  4S  L.  ed.  72,  19  Morr.  Min. 
Kep.  370. 

78  66  Fed.  212;  ante,  §591. 


§  596  EXTRALATERAL   RIGHTS   UNDER  ACT  OP  1872.  1404 

light  of  the  facts  developed  in  the  trial  before  Judge 
Hallett,  involving  only  the  extralateral  rights  of  the 
New  York  as  against  the  Del  Monte,  this  plane,  r-s-s% 
was  a  compromise  line  between  the  New  York  and  Last 
Chance,^®  and  the  question  did  not  arise  in  either  case 
as  to  whether  the  Last  Chance  company  would,  in  the 
absence  of  such  compromise  line,  be  entitled  to  any 
other  segment  of  the  vein  which  was  not  covered  by 
the  extralateral  planes  of  the  New  York. 

If  the  Last  Chance  were  prior,  its  extralateral  right 
would  be  defined  by  vertical  planes  drawn  through 
a-d-t-f  and  b-c-z'-c\  The  placing  of  its  lines  over  the 
New  York,  being  held  to  be  lawful  and  proper,  how 
much  of  the  vein  did  the  Last  Chance  lose  when  prior- 
ity was  determined  in  favor  of  the  New  York? 

It  being  understood  that  all  that  was  in  issue  in  the 
case  submitted  to  the  supreme  court  of  the  United 
States  was  the  right  of  the  Last  Chance  company  to 
follow  the  vein  north  of  the  plane  r-s-s%  there  was  no 
opportunity  for  the  court  to  consider  the  full  extent 
of  the  junior  locator's  rights.  So  the  court  declined 
to  define  them,  but  reserved  the  question  for  "further 
consideration."     Said  the  court  in  this  connection: — 

It  may  be  observed  in  passing  that  the  answer  to 
this  question  does  not  involve  a  decision  as  to  the 
full  extent  of  the  rights  beneath  the  surface  which 
the  junior  locator  acquires.  In  other  words,  refer- 
ring to  the  first  diagram  [figure  86],  the  inquiry  is 
not  whether  the  owners  of  the  Last  Chance  have  a 
right  to  pursue  the  vein  as  it  descends  into  the 
ground  south  of  the  dotted  line  r-s,  even  though 
they  should  reach  a  point  in  the  descent  in  which  the 
rights  of  the  owners  of  the  New  York,  the  prior 
location,  have  ceased.  It  is  obvious  that  the  line 
e-h,  the  end-line  of  the  New  York  claim,  extended 

79  Figure  74,  ante,  §  591. 


1405  CONFLICTING   LODE   LOCATIONS.  §  596 

downward  into  the  earth,  will,  at  a  certain  distance, 
pass  to  the  south  of  the  line  r-s,  and  a  triangle  of 
the  vein  will  be  formed  between  the  two  lines,  which 
does  not  pass  to  the  owners  of  the  New  York.  The 
question  is  not  distinctly  presented  whether  that 
triangular  portion  of  the  vein  up  to  the  limits  of 
the  south  end-line  of  the  Last  Chance,  b-c,  extended 
vertically  into  the  earth,  belongs  to  the  owners  of 
the  Last  Chance  or  not,  and  therefore  we  do  not 
pass  upon  it.  Perhaps  the  rights  of  the  junior 
locator  below  the  surface  are  limited  to  the  length 
of  the  vein  within  the  surface  of  the  territory  pat- 
ented to  him,  but  it  is  unnecessary  now  to  consider 
that  matter.  All  that  comes  fairly  within  the  scope 
of  the  question  before  us  is  the  right  of  the  owners 
of  the  Last  Chance  to  pursue  the  vein  as  it  dips  into 
the  earth  westwardly  between  the  line  a-d-t  and 
the  line  r-s,  and  to  appropriate  so  much  of  it  as  is 
not  held  by  the  prior  location  of  the  New  York,  and 
to  that  extent  only  is  the  question  answered.  The 
junior  locator  is  entitled  to  have  the  benefit  of 
making  a  location  with  parallel  end-lines.  The  ex- 
tent of  that  benefit  is  for  further  consideration.^" 

The  court  refers  to  the  line  e-h  as  an  end-line  of  the 
New  York,  and  speaks  of  a  triangle  of  the  vein  being 
formed  between  the  line  e-li  extended  across  r-s,  which 
triangle  did  not  pass  to  the  owners  of  the  New  York. 
Strictly  speaking,  the  true  north  end-line  of  the  New 
York  would  be  the  line  e-h  applied  at  r,  where  the  vein 
departs  from  the  side-line,  making  the  line  r-z-z',  and 
the  triangle  referred  to  in  the  opinion,  the  one  formed 
by  the  lines  r-s-s'  and  r-z-z\  It  was  contended  by  the 
owners  of  the  Last  Chance — which  contention,  as  we 
have  noted,  the  court  did  not  feel  called  upon  to  de- 
termine— that  in  the  absence  of  the  contractual  north 

80  171  U.  S.  55,  85,  18  Sup.  Ct.  Bep.  895,  43  L.  ed.  72,  19  Morr. 
Min.  Rep.  370. 


596 


EXTRALATERAL   RIGHTS   UNDER  ACT   OF   1872. 


1406 


compromise  line  (r-s)  the  relative  rights  of  the  par- 
ties to  the  underground  parts  of  the  vein  were  as 
shown  on  figure  87,  the  New  York  taking  all  of  the 
vein   between    r-z-z'  and  f-g-g',  and  the  Last  Chance 


iitfi 


FiGUEE  87. 

everything  between  a-d-cV  and  r-z-z'  up  to  the  plane  of 
intersection  h-c-&,  shown  in  figure  86,  the  Last  Chance 
south  end-line  as  located.  In  other  words,  the  Last 
Chance  acquired  everything  within  its  location  be- 
tween its  parallel  end-lines,  a-d,  h-c,  which  was  not  a 
part  of  the  senior  location.  It  is  quite  manifest  that 
ultimately  the  Last  Chance  would,  if  this  view  be  cor- 
rect, acquire  the  full  length  claimed  in  depth — i.  e., 


2407  CONFLICTING  LODE  LOCATIONS.  §  596 

after  the  New  York  end-line  plane,  r-z-z',  intersected 
and  passed  beyond  the  Last  Chance  end-line  plane, 
h-c,  produced  (to  point  Z'  on. figure  86,  supra). 

This  method  of  solution  may  be  thus  formulated: 

Where  two  claimants  locate  upon  the  same  vein, 
each  attempting  to  carve  out  a  segment  in  depth  be- 
tween parallel  end-lines,  a  part  of  the  apex  being 
within  a  surface  common  to  both  claims,  and  therefore 
conflicting,  the  junior  locator,  his  location  and  the  po- 
sition of  his  vein  therein  being  such  as  would  confer 
an  extralateral  right  in  the  absence  of  any  conflict, 
is  entitled  to  all  that  part  of  the  vein  in  depth  lying 
between  his  extended  end-line  planes,  less  the  segment 
which  legally  falls  to  the  senior  locator. 

The  extent  to  which  the  courts  have  given  this  ques- 
tion consideration  in  any  of  its  phases  since  the  deci- 
sion in  the  Del  Monte  case  may  be  gleaned  from  an 
analysis  of  the  cases  following: — 

In  Bunker  Hill  and  Sullivan  M.  &  C.  Co.  v.  Empire 
State-Idaho  M.  &  D.  Co  and  the  Last  Chance  company, 
commonly  known  as  the  first  Stemwinder    case,    the 


Figure  88. 
facts  of  which  are  illustrated  on  figure  88,  the  Bunker 
Hill  company  owned  the  Stemwinder ;  the  Last  Chance 


§596 


EXTRALATERAL   RIGHTS   UNDER  ACT   OF   1872. 


1408 


company  owned  the  Emma  and  Last  Chance.  The 
action  was  ejectment  to  recover  possession  of  an  un- 
derground segment  of  the  vein  lying  within  the  con- 
flicting extended  end-line  planes  of  the  Last  Chance 
and  the  Stemwinder.  The  Empire  State-Idaho  com- 
pany was  charged  as  a  joint  tort-feasor,  but  owned 
none  of  the  claims.  The  Emma  was  prior  in  point  of 
time  to  both  the  Stemwinder  and  Last  Chance.  The 
Stemwinder  asserted  priority  over  the  Last  Chance. 
The  extralateral  rights  of  the  Emma,  with  converg- 


FlGUEE  89. 
ing  end-line  planes  terminating  at  x,  or  in  that  vicinity, 
were  conceded.  The  contention  of  the  Stemwinder 
was,  that  it  owned  all  of  the  vein  within  the  extended 
end-line  planes  of  the  claim  less  the  segment  conceded 
to  the  Emma,  with  its  converging  end-lines,  the  re- 
spective underground  rights  of  the  three  claims  in  the 
order  of  priority  being  defined  as  illustrated  on  fig- 
ure 89. 

The  trial  court  found  on  the  issue  of  priority  in 
favor  of  the  Stemwinder,  against  the  Last  Chance. 
It  defined  the  extralateral  right  of  the  Stemwinder, 


1409  CONFLICTING  LODE  LOCATIONS.  §  596 

however,  by  converging  planes — viz.,  the  prolonged 
Emma  south  plane  and  the  Stemwinder  south  bound- 
ary, intersecting  at  I  on  figure  88 — awarding  to  the 
Stemwinder  this  segment,  upon  the  principle  that  it 
owned  only  so  much  of  the  apex  as  was  found  at  the 
surface  between  the  Stemwinder  south  line  and  the 
Emma  south  line,  and  that  it  could  not  predicate  any 
extralateral  right  on  any  part  of  the  apex  within  the 
Emma  nor  cross  the  Emma  south  bounding  plane." 

The  case  was  taken  to  the  circuit  court  of  appeals, 
ninth  circuit,  on  cross-writs  of  error.  The  appellate 
court  reversed  the  ruling  of  the  trial  court  as  to  the 
priority  of  the  Stemwinder  over  the  Last  Chance,  on 
the  ground  that  at  the  time  the  Last  Chance  company 
applied  for  its  patent  there  was  a  small  triangular  sur- 
face conflict  between  that  claim  and  the  Stemwinder, 
and  the  owners  of  the  latter  claim  failed  to  adverse 
the  patent  application,  by  reason  of  which  the  priority 
of  the  Last  Chance  became  established  for  all  pur- 
poses.*^   Upon  the  appeal  of  the  Stemwinder  owners 

81  Bunker  Hill  &  Sullivan  M.  &  C.  Co.  v.  Empire  State-Idaho  M.  & 
D.   Co.,   108   Fed.   189. 

82  An  application  was  made  to  the  supreme  court  of  the  United 
States  by  the  Stemwinder  owners  for  a  writ  of  certiorari,  basing  the 
application  on  the  ground  that  a  failure  to  adverse  created  an  estoppel 
only  as  to  surface  area  in  conflict,  and  did  not  affect  underground  parts 
of  the  vein  within  the  extralateral-right  planes  beyond  the  surface 
conflict.  The  writ  was  refused.  Later  the  same  question  arose  in  the 
eighth  circuit  in  the  case  of  United  States  M.  Co.  v.  Lawson,  134  Fed. 
769,  67  C.  C.  A.  587.  The  circuit  court  of  appeals  of  that  circuit 
held  that  the  estoppel  was  limited  to  the  surface  conflict  and  did  not 
affect  the  extralateral  right.  The  supreme  court  of  the  United  States 
sustained  this  view.  Lawson  v.  United  States  Min.  Co.,  207  U.  S.  1,  28 
Sup.  Ct.  Eep.  15,  52  L.  ed.  65.  The  decision  came  too  late  to  benefit 
the  Stemwinder,  as  the  decision  in  109  Fed.  538,  48  C.  C.  A.  665,  21 
Morr.  Min.  Rep.  317,  had  become  the  law  of  that  case.  The  question 
of  the  effect  of  failure  to  adverse  is  discussed  in  section  742,  post. 
The  result  of  the  first  Stemwinder  case,  followed  as  it  was  by  a  con- 

Lindley  on  M. — 89 


§  596  EXTRALATERAL   RIGHTS   UNDER  ACT  OF  1872.  1410 

the  judgment  was  affirmed,  for  tlie  reason  that  the 
award  of  the  court  below  exceeded  that  to  which  the 
Bunker  Hill  and  Sullivan  company  was  entitled  with 
priority  established  in  favor  of  the  Last  Chance. 

But  in  its  opinion  the  court  discussed  quite  fully  the 
Stemwinder  contention  that  it  was  entitled  to  the  en- 
tire segment  of  the  vein  within  its  extended  end-line 
planes  b-a-a'  and  d-c-c'  (in  figure  88),  less  the  segment 
falling  to  the  Emma,  and  announced  its  conclusion  as 
follows: — 

But  for  its  failure  to  contest  the  application  of  the 
Last  Chance  company  for  patent  to  its  claim  and 
the  issuance  of  that  instrument  we  should  feel 
obliged,  for  the  reasons  first  hereinbefore  stated, 
to  award  the  Stemwinder  the  right  to  follow  the  dip 
of  the  vein  in  question  outside  of  its  westerly  side- 
line and  between  vertical  planes  drawn  through  its  ^ 
end  lines  a-b,  c-d  extended  in  their  own  direction, 
as  against  the  government  and  all  subsequent 
locators,  saving  only  the  surface  and  underground 
rights  conceded  to  the  Emma  claim.*^ 

The  court  held  this  to  be  the  logical  deduction  from 
the  decision  of  the  supreme  court  of  the  United  States 
in  the  case  of  Del  Monte  Mining  and  Milling  Company 
v.  Last  Chance.** 

On  the  cross-writ  of  error  sued  out  by  the  Last 
Chance  and  Empire  State  companies  the  judgment  was 
reversed.*^ 

trary  ruling  by  the  supreme  court  of  the  United  States,  presents  a 
concrete  illustration  of  the  principle  that  a  refusal  by  that  court  to 
issue  a  writ  of  certiorari  is  not  tantamount  to  an  affirmance  of  the 
decision  of  the  court  below. 

83  Bunker  Hill  &  Sullivan  M.  &  C.  Co.  v.  Empire  State-Idaho  M.  & 
D.  Co.,  109  Fed.  538,  547,  48  C.  C.  A.  665,  21  Morr.  Min.  Rep.  317. 

84  171  U.  S.  55,  18  Sup.  Ct.  Rep.  895,  43  L.  ed.   72,  19  Morr.  Min. 
Eep.  370. 

85  Empire   State-Idaho   M.   &   D.   Co.   v.   Bunker   Hill   &   Sullivan   M. 
&  C.  Co.,  114  Fed.  420,  52  C.  C.  A.  219,  22  Morr.  Min.  Rep.  104. 


1411 


COXFLICTING   LODE   LOCATIONS. 


§596 


Subsequently  the  Bunker  Hill  and  Sullivan  company 
brought  another  action  against  the  Empire  State- 
Idaho  company  to  quiet  its  title  to  so  much  of  the  vein 
as  was  found  l)etween  the  extended  end-line  planes  of 
the  Stem  winder  after  passing  the  conflict  with  the 
Last  Chance.  This  is  generally  known  and  distin- 
guished as  the  second  Stemwinder  case.  The  situa- 
tion presented  in  this  action  is  disclosed  on  figure  90. 


Figure  90. 

The  Empire  State  company  owned  the  Viola,  San 
Carlos,  and  Skookum  claims,  and  a  number  of  others, 
some  of  them  having  a  part  of  the  apex  of  the  Stem- 
winder  vein  within  their  surface  limits.  Others  were 
simply  surface  claims  overlying  the  dip  of  the  vein. 

The  Stemwinder,  as  originally  located,  was  prior  in 
point  of  time  to  all  of  the  Empire  State  company's 
claims.  It  was  located  crosswise  instead  of  along  the 
vein,  the  surface  of  the  original  location  being  in- 
closed within  the  dotted  lines  marked  1-2-3-4  on  the 
figure,  the  lines  located  as  side-lines  becoming  in  law 


§  596  EXTRALATERAL   RIGHTS   UNDER  ACT   OP   1872.  1412 

the  end-lines.  In  recognition  of  this  fact  the  owners 
of  the  claim  amended  the  location,  drew  in  its  lines, 
and  established  its  corners,  1-2-3-4,  on  the  smaller 
parallelogram  within  the  original  lines.  In  doing  so 
there  was  a  slight  change  in  the  direction  given  to 
the  end-lines^  as  will  be  noted  on  the  diagram.  Be- 
tween the  dates  of  the  original  and  amended  locations 
of  the  Stemwinder  some  of  the  claims  of  the  Empire 
State-Idaho,  notably  the  Viola,  San  Carlos,  and  Skoo- 
kum,  intervened. 

The  case  was  submitted  to  the  trial  court,  presided 
over  by  Judge  James  H.  Beatty,  sitting  as  circuit 
judge  for  the  district  of  Idaho.  The  issue  was  prac- 
tically limited  to  the  determination  of  the  ownership 
of  the  underground  segment  of  the  vein  north  of  the 
Last  Chance  north  side-end-line  plane  produced  {x-y-J 
on  figure  90)  between  the  end-line  planes  of  the  Stem- 
winder. 

It  was  earnestly  contended  by  the  Empire  State 
company,  among  other  things,  that  as  the  Last  Chance 
extralateral-right  bounding  planes  cut  the  vein  be- 
tween the  Stemwinder  extended  planes  in  twain,  the 
Stemwinder  could  not  follow  it  from  its  apex  at  the 
surface  through  the  Last  Chance  extralateral  right, 
and  therefore  such  rights  as  the  Stemwinder  had  to 
the  vein  on  its  downward  course  terminated  along  the 
plane  of  Last  Chance   south   side-end   line   produced 

{K-L). 

The  court  held  that  as  against  all  the  claims  owned 
by  the  Empire  State  company  located  subsequent  to 
the  making  of  the  Stemwinder  amended  location,  the 
Bunker  Hill  company  was  the  owner  of  all  that  part 
of  the  vein  in  dispute  lying  between  the  amended  end- 


1413  CONFLICTING  LODE  LOCATIONS.  §  596 

line  planes  of  the  Stemwinder.  As  against  the  claims 
intervening  between  the  original  and  amended  loca- 
tions, the  rights  of  the  Bunker  Hill  company  were 
limited  to  the  south  amended  line  and  the  north  line  of 
the  original  location. 

The  court  expressed  the  opinion  that  this  doctrine 
was  not  according  to  its  interpretation  of  the  Del 
Monte  case  as  decided  by  the  supreme  court  of  the 
United  States,  but  was  impressed  with  the  belief  that 
it  was  supported  by  the  decision  of  the  circuit  court 
of  appeals  in  the  case  heretofore  alluded  to,  involving 
the  Last  Chance  and  Stemwinder  extralateral  ri,o:hts. 
Such  being  the  case,  it  held  that  it  was  its  plain  duty 
to  follow  the  rule  stated  by  the  appellate  court." 

In  the  meanwhile,  and  prior  to  this  decision,  an  in- 
junction pendente  lite  had  been  granted  by  the  trial 
judge,  enjoining  the  Empire  State  company  from  work- 
ing the  segment  of  the  vein  north  of  the  Last  Chance 
side-end-line  plane  and  between  the  planes  as  claimed 
by  the  Stemwinder.  From  the  order  granting  the  in- 
junction, the  Empire  State  company  appealed  to  the 
circuit  court  of  appeals,  and  on  this  proceeding  many 
of  the  questions  involved  were  settled  by  that  court 
in  advance  of  a  hearing  by  it  on  the  merits.  Among 
them  was  the  important  one  urged  in  the  trial  court, 
that  the  Stemwinder  should  be  denied  all  extralateral 
right  beyond  the  Last  Chance  south  side-end-line  plane 
by  reason  of  the  intervention  of  the  prior  Last  Chance 
extralateral  right.  The  appellate  court  decided  the 
injunction  appeal  shortly  after  the  decision  of  the  trial 

86  Bunker  Hill  &  Sullivan  M.  &  C.  Co.  v.  Empire  State-Idaho  M.  & 
D.  Co.,  134  Fed.  268.  The  opinion  was  not  published  until  alter  the 
decision  of  the  circuit  court  of  appeals,  to  be  referred  to  later. 


§  596  EXTRALATERAL   RIGHTS   UNDER  ACT   OF   1872.  1414 

court  on  the  merits.  We  herewith  reproduce  the  dia- 
gram (figure  90a)  accompanying  its  opinion,  which 
presents  the  question  in  a  simplified  form. 


h 

5~ 


J. 
r 

5q 


''^c^- 


'^ca/e  jn  T^eet 


Figure  90a. 
As  to  the  contention  referred  to,  the  circuit  court  of 
appeals,   speaking  through  Judge   Gilbert,   thus   ex- 
pressed its  views : — 

A  new  and  important  question,  however,  arises  in 
the  present  case  from  the  fact  that  the  extralateral 
right  claimed  by  the  appellee  is  cut  in  twain  by  those 
of  the  Emma  and  Last  Chance  claims,  and  that 
thereby  that  part  of  the  lode  which  is  in  controversy 
in  the  present  suit  is  detached  from  that  part  which 
apexes  within  the  appellee's  claim.  It  is  contended 
by  the  appellant  that  by  the  intervention  of  the 
extralateral  rights  belonging  to  the  Emma  and  Last 
Chance'  claims^  the  extralateral  right  of  the  appellee 
is  cut  off  and  the  appellant  asserts  the  right  to  mine 
the  ledge  in  question  by  reason  of  other  claims 
located  to  the  northwestward  of  the  Last  Chance, 
but  subsequent  in  time  to  the  Stemwinder  location. 
We  know  of  no  case  in  which  this  precise  question 
has  been  presented.  In  Empire  State-Idaho  Min- 
ing and  Developing  Company  v.  Bunker  Hill  and 


1415  CONFLICTING  LODE  LOCATIONS.  §  596 

Sullivan  Mining  Company,  114  Fed.  417,"  this  court 
recognized  the  extralateral  right  of  the  San  Carlos 
claim  beyond  the  point  where  the  prior  extralateral 
right  of  the  Viola  claim  ended,  but  in  that  case  the 
Viola  extralateral  right  did  not  wholly  intervene  at 
any  point  to  cut  off  the  ore  body  to  which  the  San 
Carlos  had  the  extralateral  right;  in  other  words, 
there  was  in  that  claim  upon  the  outcrop  of  the  ledge 
in  the  surface  location,  a  point  from  which  the  own- 
ers of  the  San  Carlos  could,  without  interruption 
and  continuously,  proceed  on  the  ledge  on  its  down- 
ward course  to  the  full  extent  of  the  extralateral 
right  awarded  by  the  court.  By  section  2236  of  the 
Eevised  Statutes,  it  is  provided  that  where  two  or 
more  veins  intersect  or  cross  each  other,  the  yjrior 
locator  shall  be  entitled  to  all  the  mineral  contained 
within  the  space  of  intersection,  and  that  the  sub- 
sequent locator  shall  have  the  right  of  way  through 
the  space  of  intersection  for  the  purpose  of  the  con- 
venient working  of  his  mine.  The  case  so  provided 
for  by  statute  is  not  the  precise  case  of  two  conflict- 
ing extralateral  rights  upon  the  same  ledge,  which 
is  here  presented,  but  in  principle  it  is  the  same.  If 
the  vein  upon  which  the  Stemwinder  is  located  were 
in  fact  a  separate  vein  from  that  on  which  the  Last 
Chance  is  located,  but  passed  through  the  latter  in 
the  same  direction  in  which  extralateral  rights  are 
claimed  in  the  present  suit,  there  could  be  no  doubt 
of  the  right  of  the  owner  of  the  Stemwinder  to  pur- 
sue the  vein  beyond  the  point  of  intersection  and 
to  maintain  a  right  of  way  through  the  vein  of  the 
Last  Chance  at  the  point  of  intersection.  We  see 
no  reason  why  that  right,  which  is  so  recognized 
by  the  statute,  and  which  would  probably  be  recog- 
nized in  the  absence  of  a  statute,  shall  be  denied 
when  the  point  of  intersection  of  extralateral  rights 
is  not  upon  separate  veins,  but  the  same  vein.*® 

87  For  illustration  of  this  case,  see  figure  61,  ante,  p.  1313. 

88  Empire   State-Idaho   M.   &   D.   Co.   v.   Bunker   Hill   &   Sullivan   M. 
&  C.  Co.,  121  Fed.  973,  976,  58  C.  C.  A.  311,  22  Morr.  Min.  Rep.  500. 


596 


EXTPLVLATERAL   RIGHTS   UNDER  ACT   OF  1872. 


1416 


This  ruling  was  followed  as  establishing  the  '4aw 
of  the  case,"  on  the  appeal  on  the  merits.®^ 

Assume  a  case 
of  two  locations, 
each  covering  a 
part  of  the  apex  of 
the  same  vein, 
without  surface 
conflict.  Figure 
91  represents  such 
a  case.  A  is  the 
senior,  and  B  the 
junior.  Each  has  a 
grant  from  the  gov- 
ernment to  their 
respective  claims, 
the  terms  of  which 
are  precisely  alike. 
Each  has  been 
granted  the  surface 


V7a 


r 


Figure  91. 


of  his  respective  claim,  together  with  all  veins  which 
have  their  tops,  or  apices,  within  such  surface, 
throughout  their  entire  depth,  although  they  may  in 
their  downward  course  enter  the  land  adjoining. 
There  is  no  limitation  on  the  face  of  either  grant. 
There  has  been  conveyed  to  A  the  vein  with  its  extra- 
lateral  extension  a-c-c,  d-e-f,  and  to  B  g-li-i  and  k-l-m. 
The  fact  that  there  is  an  underground  conflict  ])etween 
the  two  is  not  disclosed  on  the  face  of  their  respective 
titles.  B's  right  would,  in  the  absence  of  an  under- 
ground conflict  with  A's  end-line  planes,  take  the  seg- 

89  Empire  State-Idaho  M.  &  D.  Co.  v.  Bunker  Hill  &  Sullivan  M.  & 
C.  Co.,  131  Fed.  591,  596,  66  C.  C.  A.  99;  appeal  dismissed,  200  U.  S. 
613,  26  Sup,  Ct.  Eep.  754,  50  L.  ed.  620;  certiorari  denied,  200  U.  S. 
617,  26  Sup.  Ct.  Rep.  754,  50  L.  ed.  622. 


141i 


CONFLICTING   LODE   LOCATIONS. 


§596 


ment  g-h-i  and  k-l-m.  But  as  the  government  cannot 
grant  the  same  thing  twice,  B's  rights  must  yield  to 
the  extent  that  they  conflict  with  A's. 

Again:   If  D  grant  Black  Acre  to  C,  having  previ- 
ously granted  to  E  a  surface  parallelogram  passing 
through  the  center  of  it, 
the  grant  to  C  is  effect-   ^'!*M^^^:>l^^-'^>mB^^ 
ive  as  to  all  that  part  of 
Black  Acre  not   previ- 
ously alienated.    This  is 
an  elementary  rule   of 
real  property. 

Take  another  illustra- 
tion. Figure  92  is  a 
cross-section  through 
White  Acre,  belonging 
to  A,  his  ownership  ex- 
tending from  the  sur- 
face downward  usque 
ad  or  cum. 


if^uzn 


T^  f^S  a  nd  ston0  iti^di 


FiGUEE     92. 

Underneath  the  surface  there  is  first  a  hori- 
zontal stratum  of  coal,  then  a  zone  containing  oil  and 
gas  resting  upon  a  bed  of  sandstone. 

That  A  may  sever  the  title  to  any  one  or  more  of  the 
different  deposits  from  the  title  to  the  surface  without 
affecting  his  right  to  the  remainder,  and  without  recit- 
ing in  the  conveyance  any  terms  of  reservation,  is  ele- 
mentary.^" 

A  conveys  the  coal  stratum  to  B.  His  ownership  of 
the  oil,  gas  and  sandstone  are  unaffected. 

90  Chartiers  Block  Coal  Co.  v.  Mellon,  152  Pa.  286,  295,  3-t  Am.  St. 
Eep.  645,  25  Atl.  597,  599;  Lillibridgc  v.  LackaAvanna  Coal  Co.,  143  Pa. 
293.  24  Am.  St.  Eep.  544,  22  Atl.  1035,  1037,  13  L.  R.  A.  627;  Smith 
V.  Jones,  21  Utah,  270,  60  Pae.  1104,  1105.  and  numerous  cases  cited; 
Graciosa  Oil  Co.  v.  County  of  Santa  Barbara,  155  Cal.  140,  99  Pac 
483,  486,  20  L.  E.  A.,  N.  S.,  211. 


§  596  EXTRALATERAL   RIGHTS   UNDER   ACT   OF   1872,  1418 

A  grant  of  this  character  was  involved  in  a  case  con- 
sidered by  the  supreme  court  of  Pennsylvania,  wherein 
the  grantee  of  the  coal  seam  claimed  by  virtue  of  his 
grant  the  underlying  oil  and  gas.  Said  the  court  as 
to  this  contention: — 

Prior  to  the  sale  of  the  coal  his  (the  grantor's) 
estate,  as  before  observed,  reached  from  the  heavens 
to  the  center  of  the  earth.  With  the  exception  of 
the  coal  his  estate  is  still  bounded  by  those  limits.^^ 

In  the  case  illustrated  on  figure  90  the  government 
originally  owned  all  the  land  and  all  the  vein.  It  sold 
to  different  grantees  different  parts  of  the  land  and 
vein.  To  the  Last  Chance  and  Emma  may  be  awarded 
what  their  prior  grants  call  for  without  affecting  the 
right  of  the  government  to  dispose  of  the  remainder, 
the  Stemwinder  taking  title  to  such  parts  of  both  vein 
and  surface  as  were  not  included  in  the  prior  grants, 
and  those  coming  after  the  Stemwinder  taking  what- 
ever of  the  remainder  th6y  may  see  fit  to  appropriate. 

It  is  well  settled  that  in  construing  conveyances  be- 
tween private  parties  the  granting  of  a  section  of  a 
vein  of  mineral  does  not  operate  to  transfer  the  vein 
in  toto.  The  title  to  the  unconveyed  portion  remains 
undisturbed,  with  probably  a  right  of  access  through 
the  conveyed  portion.^^ 

The  application  of  this  method  of  adjusting  the 
rights  of  apex  proprietors,  whose  extralateral    right 

91  Chartiers  Block  Coal  Co.  v.  Mellon,  152  Pa.  286,  296,  34  Am.  St. 
Eep.  645,  25  Atl.  597,  598. 

92  Montana  M.  Co.  v.  St.  Louis  M.  Co.,  204  U.  S.  218,  27  Sup.  Ct. 
Eep.  254,  51  L.  ed.  444;  Montana  M.  Co.  v.  St.  Louis  M.  &  M.  Co.,  183 
Fed.  51,  60,  105  C.  C.  A.  343. 


1419 


CONFLICTING    LODE  LOCATIONS. 


§596 


planes  intersect  whether 
there  be  a  surface  con- 
flict or  not,  is  exhibited 
in  figure  92a. 

This  is  the  result  of 
the  decisions  of  the  courts 
adjudicating  the    rights 
of  the  claimants  in  the 
litigation     between     the 
Bunker  Hill   and   Sulli- 
van   Mining    and   Con-  FiGUKE  92a. 
centrating  Company  and  the  Empire  State-Idaho  Min- 
ing Developing  Co.  and  its  jDredecessors  in  title,  dis- 
cussed in  previous  sections. 

The  case  of  Davis  v.  Shepherd,^''  discussed  and  illus- 
trated in  a  previous  section,^*  presented  a  situation 
where  there  were  conflicting  surface  locations  each 
having  a  part  of  the  apex.  It  was  in  effect  determined 
by  the  application  of  principles  heretofore  discussed. 

In  the  case  of  Big  Hatchet  Consolidated  M.  Co.  v. 
Colvin,**^  the  facts  of  which  may  be  illustrated  by  a  dia- 
gram which  we  insert  as  figure  92b,  a  question  of  over- 
lapping surfaces  and  conflicting  apex  rights  arose  be- 
tween the  Washington  and  the  Cook  claims.  The  Cook 
was  the  jDrior  patent.  The  Washington  patent  de- 
scribes the  claim  in  the  ordinary  form  by  tracing  its 
exterior  lines  and  excepting  the  area  in  conflict  with 
the  Cook.^*'  The  court  in  effect  ruled  that  when  a 
junior  patented  claim  overlaps  senior  claims  and  the 
patent  describes  the  full  area  of  the  location  as  orig- 


9"  31  Colo.  141,  72  Pac.  57,  22  Morr.  Min.  Rep.  575. 
9*  §  595,  figure  82c. 

95  19  Colo.  App.  405,  75  Pac.  605. 

96  The  author  is  indebted  to  Messrs.  Morrison  &  De  Soto,  of  Denver, 
for  the  information.     They  examined  the  record  at  his  request. 


§596 


EXTR^UiATERAL   RIGHTS   UNDER  ACT   OP   1872. 


1420 


Figure  92b. 
inally  marked  on  the  ground,  the  end-lines  being  par- 
allel and  the  areas  in  conflict  are  excepted  from  the 
junior  patent,  the  extralateral  right  of  the  junior  pat- 
entee is  to  be  determined  by  the  original  lines  of  the 
location  as  defined  in  the  patent,  deducting  such  extra- 
lateral  parts  of  the  vein  as  fall  to  the  senior  locations. 
In  other  words,  the  end-lines  are  not  those  formed  by 
the  boundaries  of  the  senior  locations. 

The  mere  fact,  if  it  be  true,  that  the  vein  cannot  be 
followed  continuously  from  the  outcrop  to  the  segment 
in  dispute,  there  being  possibly  no  reserved  easement 
in  the  prior  grant  to  that  effect,  is  the  suggestion  of  a 
mere  inconvenience  to  the  junior  locator  and  not  a 
limitation  upon  his  title  beyond  the  plane  of  conflict. 
The  statute  provides  for  a  grant  of  the  vein  through- 


1421 


CONFLICTING   LODE   LOCATIONS. 


§596 


out  its  entire  depth  between  tlie  end-lines  of  the  loca- 
tion, and  not  merely  the  right  to  follow  it. 

In  a  case  considered  by  the  supreme  court  of  Mon- 
tana, the  facts  of  which  are  explained  by  a  diaf^ram 
accompanying  the  opinion,  which  we  herewith  repro- 
duce as  figure  93,  the  location  of  a  claim  called  the 
Copper  Trust  was  so  placed  as  to  embrace,  with  the 
exception  of  two  small  triangles,  A-B  and  C,  the  apex 
of  the  vein  and  surface  ground  covered  by  prior  pat- 
ented claims.  The  discovery  was  made  within  the 
small  triangle  A-B,  which  was  then  vacant.  The  prob- 
able object  in  making  the  location  was  to  obtain  title 
to  the  triangular  underground  segment  of  the  vein 


LeGGAT   a«o  jFoster 
,'       Place  « 


¥ 


3t 


Figure  93. 
formed  by  the  divergence  of  the  end-lines  of  the  Ana- 
conda and  St.  Lawrence — i.  e.,  the  triangle  G-ij-x  un- 
derneath the  surface  of  the  Rob  Roy  and  other  claims. 
Having  made  this  location,  the  owner  of  the  Copper 
Trust  brought  an  action  in  trespass,  and  made  appli- 
cation to  the  trial  court  for  an  order  permitting  him 


§  596  EXTRALATERAL   RIGHTS  UNDER  ACT   OF  1872.  1422 

to  inspect,  sample,  and  survey  the  extensive  under- 
ground works  of  the  St.  Lawrence,  Anaconda,  Never 
Sweat,  and  other  claims  owned  by  the  Anaconda  and 
the  Washoe  copper  companies.  The  trial  court 
granted  the  order,  whereupon  the  defendant  companies 
apphed  to  the  supreme  court  of  the  state  for  a  ''writ 
of  supervisory  control"  to  review  and  annul  the  action 
of  the  trial  court.  The  companies  admitted  that  the 
triangular  segment  of  the  vein  in  controversy  was  not 
within  the  extralateral  rights  of  any  of  their  claims, 
but  claimed  such  segment  by  virtue  of  the  ownership 
of  the  overlying  surface.  The  owner  of  the  Copper 
Trust  claimed  ownership  under  the  doctrine  of  the  Del 
Monte  case,  asserting  his  right  to  place  his  lines  over 
the  prior  patented  claims  for  the  purpose  of  securing 
underground  rights  not  in  conflict  with  the  prior  claims 
— to  wit,  the  triangle  G-x-y.  The  extent  of  the  privi- 
lege of  inspection  and  survey  granted  by  the  lower 
court — ^viz.,  to  enter  any  or  all  the  underground  work- 
ings of  all  the  claims  for  a  period  of  forty  days,  to  em- 
ploy six  engineers  and  assistants  to  conduct  the  work 
of  survey  and  inspection,  and  to  demand  that  he  and 
his  corps  of  engineers  and  assistants  be  lowered  into 
the  mines  and  hoisted  to  the  surface  whenever  such 
service  should  be  required — was  somewhat  out  of  pro- 
portion to  the  amount  of  apex  held  by  the  Copper 
Trust,  free  from  surface  conflicts  with  prior  claims, 
as  it  confessedly  appeared  to  be  within  a  triangle  hav- 
ing a  base  of  ten  feet,  clear  ground.  The  supreme 
court  of  Montana  expressed  the  view  that  the  decision 
in  the  Del  Monte  case  would  not  sanction  the  making 
of  a  location  over  patented  claims  in  the  manner  in 
which  the  Copper  Trust  was  located.    That  whatever 


1423  CONFLICTING  LODE  LOCATIONS.  §  596 

extralateral  riglits  pertained  to  that  claim  were  lim- 
ited to  the  extent  of  apex  found  in  the  triangle  embra- 
cing it,  and  that  such  rights  could  not  be  exercised  be- 
yond the  east  end-line  of  the  St.  Lawrence;  that  the 
Copper  Trust  has  no  part  of  the  apex  of  the  vein  so 
situated  with  reference  to  the  ore  bodies  in  dispute 
within  the  triangle  G-y-x,  which  enables  the  owner  to 
pursue  the  vein  from  the  surface.  He  cannot  pass 
through  the  St.  Lawrence  from  the  point  at  which  he 
made  discovery  or  from  any  point  within  any  surface 
owned  by  him;  therefore,  he  is  not  in  a  position  by 
virtue  of  his  location  to  maintain  his  claim  to  the  ores 
in  controversy;  'prima  facie,  such  ore  bodies  belong 
to  the  copper  companies  by  virtue  of  their  common-law 
rights  to  the  Rob  Roy  and  claims  to  the  south.  The 
action  of  the  court  below  was  reversed." 

These  views  are  not  in  harmony  with  what  we  under- 
stand to  be  the  decisions  of  the  circuit  court  of  appeals 
and  the  circuit  court  in  the  Stemwinder  cases.  But 
lack  of  harmony  between  courts  of  different  inde- 
pendent jurisdictions  in  the  construction  of  the  min- 
ing laws  is  a  matter  of  frequent  occurrence.  For  this 
reason,  the  law  often  remains  in  a  state  of  uncertainty 
until  -the  questions  are  finally  decided  by  the  supreme 
court  of  the  United  States.  Even  then  courts  at  times 
disagree  as  to  the  proper  construction  to  be  given  to 
the  decisions  of  the  court  of  final  resort. 

Judge  Beatty,  in  his  decision  in  the  second  Stem- 
winder  case,®^  seems  to  have  entertained  a  view  which, 

87  State  ex  rel.  Anaconda  C.  Co.  v.  District  Court,  25  Mont.  504,  65 
Pac.  1020. 

88  Bunker  Hill  &  Sullivan  M.  &  C.  Co.  v.  Empire  State-Tdaho  M. 
&  D.  Co.,  decided  January  17,  1903,  but  not  reported  until  1905,  134 
Fed.  268,  270. 


§  597  EXTRALATERAL   RIGHTS   UNDER  ACT   OF   1872.  1424 

had  his  judgment  not  been  controlled  by  his  interpre- 
tation of  the  opinion  of  the  circuit  court  of  appeals 
in  the  first  Stemwinder  case,®^  would  have  resulted  in 
an  opinion  quite  in  harmony  with  the  Copper  Trust 
case,  which,  however,  he  did  not  refer  to.  We  quote 
from  his  opinion: — 

If  it  [the  contention  of  the  Bunker  Hill  Co.]  is 
correct,  then  the  locator  of  an  unclaimed  apex  of 
even  ten  feet  may  overlap  other  valid  locations  for 
fourteen  hundred  and  ninety  feet  and  thereby  claim 
extralateral  rights  for  the  distance  of  fifteen  hun- 
dred feet  of  all  the  fractional  underground  portions 
of  the  ledge  not  included  in  prior  extralateral  rights. 
If  this  is  the  law,  it  must  lead  to  great  confusion 
of  rights.  It  is  said  that  the  supreme  court  has 
in  effect  so  held.  I  am  unable  to  so  read  its  deci- 
sions. 

But  the  Judge  felt  constrained  to  follow  the  deci- 
sions of  the  appellate  courts,  which  ultimately  ripened 
into  the  rule  announced  in  the  second  Stemwinder  case 
heretofore  discussed.  The  supreme  court  of  the 
United  States  was  appealed  to  in  order  to  settle  the 
question,  but  writs  of  certiorari  were  refused  and  ap- 
peals dismissed  without  passing  upon  the  merits.  It 
is  well  recognized  that  this  action  of  the  court  of  last 
resort  is  not  tantamount  to  an  affirmance  of  the  deci- 
sions of  the  courts  below,  or  a  recognition  of  the  cor- 
rectness of  the  opinion  of  such  courts. 

§  597.  Extralateral  right  where  the  apex  is  found  in 
surface  conflict  between  junior  lode  locations  and  prior 
placer  or  agricultural  patents. — If  the  views  of  the  tri- 
bunals discussed  in  previous   sections  ^°°  are  correct 

99  109  Fed.  538,  48  C.  C.  A.  665,  21  Morr,  Min,  Rep.  317. 

100  §§  363,  363a. 


1425 


CONFLICT   WITH    NOXLODE   PATENTS. 


§597 


expositions  of  the  law,  and  it  is  permissible  for  a 
junior  lode  locator  to  place  his  lines  upon,  for 
example,  a  prior  patented  agri- 
cultural tract  containing  a  part 
of  the  apex  of  a  vein,  for  the  pur- 
pose of  acquiring  an  extralateral 
right  out  of  and  be^^ond  the  ver- 
tical plane  drawn  through  the 
patented  agricultural  boundary 
we  may  briefly  inquire  into  the 
extent  of  such  rights  and  how 
they  are  to  be  defined. 

To  illustrate,  by  reference  to  FiGUEE  94. 

figure  94,  a  prospector  discovers  the  vein  at  a  point 
on  unappropriated  land,  and  it  is  found  to  cross  on  its 
course  the  corner  of  a  prior  patented  agricultural 
claim.  Exercising  the  j)rivilege  which  the  land  de- 
partment and  the  courts  permit,  he  locates  in  the  man- 
ner indicated  the  claim  1-2-3-4.  The  agricultural 
patentee's  rights  on  this  vein  do  not  extend  beyond 
the  vertical  planes  a-d  and  d-c.  Does  the  mining  claim- 
ant acquire  all  of  the  vein  between  his  extended  end- 
line  planes  except  such  part  of  it  as  is  within  the  agri- 
cultural patent?  The  logical  application  of  the  rule 
sanctioned  by  the  department  and  its  interpretation 
of  the  Del  Monte  case  leads  to  the  inevitable  conclusion 
that  the  locator's  rights  would  be  thus  defined.  If  this 
be  so,  a  like  rule  should  be  applied  to  the  situations 
assumed  on  figures  95  and  96. 

Illustrations  of  this  character  might  be  indefinitely 
multiplied.  These  illustrations  also  present  opportu- 
nities for  the  possible  application  of  the  ''theoretical 

Lindley  on  M. — 90 


597  EXTRALATERAL   RIGHTS   UNDER  ACT   OF   1872.  1426 


apex"  doctrine  tentatively  discussed  in  a  preceding 
section/ 


Affricu  Cturat 


Agricultural 
Patent 


LOCATION 


Figure  95.  Figure  96. 

The  only  litigated  case  which  to  our  knowledge  has 
engaged  the  attention  of  the  courts  wherein  any  of 
these  problems  were  discussed  was  the  case  of  Wede- 
kind  V.  Bell,  tried  before  Judge  Talbot,  district  judge 
of  Washoe  county,  Nevada.  The  phenomenal  rich- 
ness of  the  deposit  involved  attracted  wide  attention, 
and  the  case  became  to  some  extent  a  cause  celebre. 

We  illustrate  the  facts  of  the  case  by  the  use  of 
figure  96a.  A  more  elaborate  representation  accom- 
panies the  opinion  of  the  supreme  court  of  Nevada, 
dismissing  the  appeal.^ 

1  §  312a.  The  cases  illustrated  on  figures  95  and  96  would  seem  to 
warrant  the  application  by  analogy  of  the  conventional  apex  discussed 
l)Ost,  section  618a,  reviewing  the  case  of  the  Montana  Ore  Purchasing  Co. 
V.  Boston  &  Montana  M.  Co.  (on  rehearing),  27  Mont.  536,  71  Pac. 
1005,  defining  the  extralateral  right  of  a  mining  claim  containing  a 
part  of  the  apex. 

2  Wedekind  v.  Bell,  26  Nev.  395,  99  Am.  St.  Rep.  704,  69  Pac.  612. 


1427 


CONFLICT   WITH   NONLODE  PATENTS. 


§597 


As  will  be  observed 
from  the  diagram,  sec- 
tion 33  is  patented 
railroad  land;  section 
32,  patented  desert 
land;  section  28,  pub- 
lic land;  and  section 
29,  unpatented  rail- 
road land.  Wedekind 
owned  section  29  and 
that  part  of  section  33 
covered  by  the  Safe- 
guard claim,  acquired 
by  purchase  from  the  FlGUEE  96a. 

railroad  company.  He  also  owned  the  Safeguard 
mining  claim,  lying  partly  in  the  four  sections,  based 
upon  a  discovery  in  section  28  within  the  limits  of  his 
location.  Bell  owned  section  32,  underneath  the  sur- 
face of  which  were  the  ore  bodies  in  dispute.  Wede- 
kind contended  that  he  had  the  apex  of  the  vein  within 
that  part  of  his  location  in  section  33,  and  therefore, 
although  it  had  been  previously  patented  to  the  rail- 
road company,  he  had  a  right,  by  virtue  of  the  Safe- 
guard location,  to  follow  the  vein  under  the  Bell  tract, 
and  that  Bell  committed  a  trespass  by  extracting  the 
ore  from  the  vein  underneath  his  (Bell's)  surface. 
This  was  the  controversy  in  the  case.  If  section  33 
had  been  public  land,  a  question  would  arise  as  to 
whether  a  junior  lode  claimant,  having  located  the  apex 
outside  of  the  prior  desert  land  patent,  would  have  a 
right  to  follow  the  vein  under  such  desert  land.  We 
will  endeavor  to  show  in  a  subsequent  section  that  this 
is  a  debatable  question.^ 

3  Post,  §  612. 


§  597  EXTRALATERAL   RIGHTS   UNDER  ACT   OF  1872.  1428 

Leaving  tliis  element  out  of  consideration  for  the 
time  being,  and  assuming  that  the  junior  apex  pro- 
prietor could  not  pass  underneath  the  prior  agricul- 
tural patent,  there  is  but  little  doubt  that  the  extra- 
lateral  right  of  the  Safeguard  would  be  defined  by  the 
planes  1,  4,  5,  and  the  vertical  plane  drawn  through  the 
section  line  ^/-W,  the  unpatented  railroad  land  in  sec- 
tion 29  being  dealt  with  as  public  land.* 

But  Wedekind  claimed  the  extralateral  right  based 
in  a  measure  upon  his  location  in  section  33,  thereto- 
fore patented  to  the  railroad  company  whose  consent 
to  the  making  of  the  location  had  been  obtained.  In 
other  words,  he  contended  that  the  title  to  neither  sec- 
tion 33  nor  32  carried  common-law  rights  as  against 
one  locating  the  apex  of  the  vein ;  that  the  common  law 
of  England  was  never  in  this  regard  adopted  in 
Nevada ;  that  state  had  a  common  law  of  its  own,  which 
construed  all  government  grants  as  subordinate  to 
miners'  rules  and  customs,  which  sanctioned  the  loca- 
tion of  an  apex  within  prior  patented  agricultural 
lands  (with  the  consent  of  the  owner),  and  the  predica- 
tion thereon  of  an  extralateral  right  underneath  prior 
patented  agricultural  lands.  Or,  as  his  counsel  stated 
it:— 

No  part  of  the  common  law  is  applicable  to  mining 
controversies  if  it  is  inconsistent  with  the  usages  and 

customs  which   are  peculiar   to   mining The 

English  common-law  maxim,  that  the  owner  of  the 
surface  of  land  owns  everything  above  and  beneath 

it  was  never  adopted  in  Nevada Mining  [in 

Nevada]  is  our  paramount  industry.  The  policy  of 
our  laws  is  to  encourage  and  extend  it.  It  has  the 
right  of  eminent  domain.  All  other  property  is 
held  subject  to  be  taken  for  it,  and  all  doubts  must 
be  so  resolved  as  to  promote  this  state  policy. 

*  Ante,   §  154. 


1429  CONCLUSIONS.  §  598 

The  trial  court  held  with  this  contention  and 
awarded  judgment  in  favor  of  Wedekind.  Bell  ap- 
pealed. IPending  the  appeal,  the  interest  of  both  par- 
ties seemed  to  have  been  united  in  a  third  person,  who 
became  do  minus  litus  on  each  side  of  the  case,  and 
while  each  of  the  former  contending  factions  were 
desirous  of  having  the  supreme  court  pass  upon  the 
merits  of  the  controversy,  neither  of  them  having 
anything  to  lose,  the  court  declined  to  do  so  and  dis- 
missed the  appeal.'' 

§  598.  Conclusions. — It  is  quite  manifest,  from  a 
review  of  the  foregoing  sections  of  this  article,  that  we 
have  not  undertaken  to  present  all  possible  combina- 
tions arising  from  either  the  forms  of  location  or  the 
erratic  course  of  veins  through  them.  Hypothetical 
cases  without  number  might  be  assumed,  illustrated, 
and  discussed,  without  material  advantage  to  either 
the  practitioner  or  the  author.  Many  of  them  may 
be  solved  by  the  application  of  established  principles. 
Others  present  individual  types,  which  will,  should 
they  arise,  perplex  the  courts,  even  in  the  absence  of 
controverted  questions  of  fact.  It  has  been  our  aim 
to  confine  our  treatment  of  the  subject  to  the  exposi- 
tion of  the  law  as  found  in  the  adjudicated  cases,  and 
applying  the  principles  which  seem  to  be  sanctioned  by 
the  current  of  judicial  authority  to  a  few  hypothetical 
cases  .which  appear  to  us  to  be  susceptible  of  solution 
by  resorting  to  such  principles.  "We  may  admit  that 
as  to  some  of  these  hypothetical  cases  the  position 
assumed  by  us  is  open  to  debate  and  criticism,  but  in 
the  main  we  think  we  have  fairly  presented  the  exist- 
ing state  of  the  law  on  this  important  subject,  and  are 
justified  in  deducing  therefrom  the  following  rules : — 

B  Wedekind  v.  Bell,  26  Nev.  395,  99  Am.  St.  Kep.  704,  69  Pac.  612. 


§  598  EXTRALATERAL   RIGHTS   UNDER  ACT   OF   1872,  1430 

(1)  Under  the  act  of  1866,  parallelism  of  end-lines 
was  not  essential  to  the  exercise  of  the  extralateral 
right.  The  vein  might  be  pursued  in  depth  indefin- 
itely between  planes  at  right  angles  to  the  general 
course  of  the  vein  applied  at  the  extremities  of  the 
vein  within  the  location  if  the  end-lines  of  the  claim 
diverged  in  the  direction  of  the  dip.  If  they  con- 
verged the  extralateral  right  would  be  defined  either 
by  projecting  the  converging  end-line  planes  to  the 
line  of  intersection  or  possibly  by  the  application  of 
rectangular  planes,  if  such  planes  did  not  encroach 
upon  the  rights  of  adjoining  apex  proprietors,  or  the 
element  of  estoppel  did  not  exist.  If  they  were 
parallel,  no  controversy  as  to  the  extralateral  right 
could  possibly  arise; 

(2)  Under  the  act  of  1872,  parallelism  of  end-lines  is 
essential,  except  where  the  opposite  boundary  lines, 
crossed  by  the  lode,  converge  in  the  direction  of  the 
dip; 

(3)  In  order  to  enjoy  the  extralateral  right,  the 
locator  must  include  within  his  boundaries  some  part 
of  the  apex  of  a  discovered  vein; 

(4)  Where  a  vein  crosses  two  opposite  parallel  side- 
lines, the  extralateral  right  is  defined  by  producing 
such  side-end  lines  indefinitely  in  the  direction  of  the 
dip,  and  the  angle  at  which  the  lode  crosses  these  lines 
is  of  no  moment; 

(5)  Where  a  vein,  located  under  the  act  of  1872, 
crosses  two  opposite  nonparallel  side-lines,  if  such  lines 
diverge  in  the  direction  of  the  dip,  there  can  be  no 
extralateral  right.  Where,  as  produced,  they  converge 
and  intersect  beyond  the  limits  of  the  location,  the 
vein  may  be  pursued  in  its  downward  course  to  the 
line  of  intersection  of  the  two  planes,  at  which  line  the 
extralateral  right  ceases; 


1431  CONCLUSIONS.  §  598 

(6)  Where  such  a  vein  crosses  one  of  the  lines  desig- 
nated by  the  locator  as  an  end-line,  and  departs 
through  a  side-line,  the  extralateral  right  is  defined  by 
reference  to  the  direction  of  the  crossed  located  end- 
line.  A  plane  parallel  to  one  drawn  through  such 
crossed  end-line,  produced  indefinitely  in  the  direction 
of  the  dip,  applied  at  the  point  where  the  lode  crosses 
the  side-line,  will  can^e  out  a  segment  of  the  vein 
throughout  its  entire  depth,  which  will  belong  to  the 
locator; 

(7)  Where  the  apex  of  the  located  vein  crosses  none 
of  the  boundaries  of  the  location,  but  lies  wholly  within 
such  boundaries,  or  crosses  one  end-line  and  fails  to 
reach  any  other  boundary,  the  extralateral  right  is 
defined  by  reference  to  planes  drawn  through  the 
located  end-lines; 

(8)  Where  the  location  contains  more  than  one  vein 
the  extralateral  right  as  to  all  secondary  veins  is  to  be 
defined  by  the  same  set  of  end-lines  as  limit  that  right 
on  the  original  lode,  such  planes  to  be  applied  at  the 
extremities  of  the  secondary  vein  at  the  surface  within 
the  location.  This  rule  is  applicable  to  locations  made 
under  either  the  act  of  1866  or  the  act  of  1872.  The 
application  of  this  rule  is  subject  to  this  qualification: 
that  such  planes  must  be  so  applied  to  the  secondary 
vein  as  to  cross  the  lode.  Where  their  application 
would  produce  a  plane  parallel  or  coincident  with  the 
course  of  the  secondary  vein  there  could  be  no  extra- 
lateral  right  on  such  vein. 

(9)  Where  the  extralateral-right  planes  of  two  loca- 
tions conflict,  each  having  a  part  of  the  apex  of  the 
vein  within  their  respective  surface  boundaries,  the 
junior  locator  takes  such  segment  of  the  vein  within 
his  extralateral  bounding  planes  as  remains  after 
satisfying  the  extralateral  right  of  the  prior  grant. 


§  604     PATENTS  APPLIED  FOR  PRIOR  TO  ACT  OP  1872.     1432 

If  these  principles  are  fairly  deducible  from  the 
adjudicated  cases,  the  difficulties  surrounding  the  ap- 
plication of  the  law  are  reduced  to  a  minimum.  "What 
is  most  essential  is  certainty  of  the  rule  and  uniform- 
ity in  its  application.  It  is  better  that  the  principle 
established  should  be  certain  and  definite,  even  if  it  is 
not  based  upon  incontrovertible  logic  or  the  perfection 
of  human  reasoning. 


Article  IV.  Construction"  of  Patents  Ap- 
plied FOR  Prior,  but  Issued  Subsequent,  to 
THE  Act  of  1872. 

§  604.     Patents  applied  for  under  the  act  of  1866,  but  issued  after  May 
10,  1872,  to  be  construed  as  if  issued  under  the  prior  law. 

§  604.  Patents  applied  for  under  the  act  of  1866,  but 
issued  after  May  10,  1872,  to  be  construed  as  if  issued 
under  the  prior  law. — At  the  time  the  act  of  July  26, 
1866,  was  repealed,  and  the  old  system  gave  place  to 
the  new,  a  great  many  applications  for  patent  were 
pending  before  the  land  department,  based  upon  loca- 
tions made  either  under  the  repealed  law  or  prior  to  its 
enactment.  In  some  instances,  final  entry  and  pay- 
ment had  been  made,  and  the  receiver's  receipt  or 
certificate  of  purchase  had  been  issued,  leaving  noth- 
ing further  to  be  done  save  the  formal  issuance  of  the 
patent.  In  other  cases,  action  on  the  part  of  the  land 
department  was  suspended,  awaiting  the  determina- 
tion of  adverse  conflicting  claims.  In  still  others,  the 
preliminary  steps  had  been  taken,  and  only  awaited 
the  lapse  of  the  requisite  period  enabling  the  applicant 
to  make  final  entry  and  payment.  Recognizing  these 
conditions,  congress  incorporated  into  the  new  law  the 
following  provisions: — 


1433  APPLICATIONS  PRIOR  TO  ACT  OF  1872.  §  604 

Sections  one,  two,  three,  four,  and  six  of  an  act 
entitled,  ''An  act  granting-  the  right  of  way  to  ditch 
and  canal  owners  over  the  public  lands,  and  for  other 
purposes,"  approved  July  26,  1866,  are  hereby  re- 
pealed, but  such  repeal  shall  not  affect  existing 
rights.  Applications  for  patents  for  mining  claims 
now  pending  maj'  be  prosecuted  to  a  final  decision  in 
the  general  land  office;  but  in  such  cases,  where 
adverse  rights  are  not  affected  thereby,  patents  may 
issue  in  pursuance  of  the  provisions  of  this  act ;  and 
all  patents  for  mining  claims  heretofore  issued  under 
the  act  of  July  26,  1866,  shall  convey  all  the  rights 
and  privileges  conferred  by  this  act,  where  no  ad- 
verse rights  exist  at  the  time  of  the  passage  of  this 
act.®  ....  Provided,  that  nothing  contained  in  this 
act  shall  be  construed  to  impair,  in  any  way.  rights 
or  interests  in  mining  property  acquired  under 
existing  laws.^ 

This  manifests  the  unequivocal  intention  of  congress 
to  preserve  all  rights  previously  acquired,  and  the  act 
must  be  so  construed.* 

There  is  nothing  in  the  terais  of  the  new  act  which 
required  the  applicant  to  institute  proceedings  de  novo, 
or  to  go  into  the  field  and  re-form  the  lines  of  his  sur- 
vey so  as  to  include  within  his  boundaries  only  so  much 
surface  as  was  permitted  under  the  act  of  1872,  where 
under  the  pre-existing  law  and  local  rules  he  might 
have  been  entitled  to  more.     He  was  not  required  to 

6  Act  of  May  10,  1872,  §  9;  17  Stats,  at  Large,  p.  94. 

1  Id.,  §  10. 

8  Eclipse  G.  &  S.  M.  Co.  v.  Spring,  59  Cal.  304,  305;  Argonaut  M. 
Co.  V.  Kennedy  M.  Co.,  131  Cal.  15,  82  Am.  St.  Rep.  317,  63  Pac.  148, 
151,  21  Morr.  Min.  Rep.  163;  Central  Eureka  M.  Co.  v.  East  Central 
Eureka  M.  Co.,  146  Cal.  147,  79  Pae.  834,  835,  9  L.  R.  A.,  N.  S.,  940; 
East  Central  Eureka  M.  Co.  v.  Central  Eureka  M.  Co.,  204  U.  S.  266,  27 
Sup.  Ct.  Rep.  258,  15  L.  ed.  476.  See  New  Dunderberg  v.  Old,  79  Fed, 
598,  601,  25  C.  C.  A.  116;  Crane's  Gulch  M.  Co.  v.  Scherrer,  134  Cal. 
350,  86  Am.  St.  Rep.  279,  66  Pae.  487,  488,  21  Morr.  Min.  Rep.  549. 


§  604     PATENTS  APPLIED  FOR  PRIOR  TO  ACT  OF  1872.     1434 

republish  a  notice  of  his  application  for  patent,  and 
open  the  door  to  outside  claimants  who  had  been 
barred  by  the  lapse  of  time  under  the  previous  law. 

The  object  of  the  original  act,  as  well  as  the  one 
which  superseded  it,  was  to  require  the  claims  of  all 
parties  to  be  adjusted  prior  to  the  issuance  of  a  patent. 
The  proceedings  before  the  land  department  are 
judicial  in  character,  and  the  publication  of  notice  as 
required  brings  all  parties  into  court;  and  if  outside 
claimants  stand  by  and  allow  the  statutory  time  for 
filing  adverse  claims  to  elapse,  their  rights,  so  far  as 
the  same  might  have  been  determined  in  such  proceed- 
ings, are  forever  lost.® 

To  insist  that  the  applicant  should  abandon  his  pro- 
ceedings initiated  prior  to  the  passage  of  the  act  of 
1872,  reopen  his  case,  and  proceed  thereafter  in  strict 
conformity  with  the  new  law,  would  be  to  deprive  him  v 
of  a  substantial  right  which  was  preserved  to  him  by 
the  law  itself. 

The  land  department,  which  had  acquired  jurisdic- 
tion under  the  original  law,  was  not  deprived  of  that 
jurisdiction  under  the  new  act.  If  it  had  power  to 
issue  the  patent  at  all,  in  doing  so  it  could  only  recog- 
nize the  conditions  as  they  existed  at  the  time  the  appli- 
cation was  filed. 

We  therefore  encounter  numerous  patents,  bearing 
date  subsequent  to  the  passage  of  the  act  of  May  10, 
1872,  which  describe  surface  areas  of  such  form  and 
extent  as  to  be  practically  invalid  if  issued  under  that 
act,  but  which  are  not  open  to  objection  where  it  is 
shown  that  they  were  issued  upon  proceedings  insti- 
tuted while  the  act  of  1866  was  still  in  force.  Such 
patents  are  to  be  construed  as  if  they  had  been  issued 

9  Kannaugh  v.  Quartette  M.  Co.,  16  Colo.  341,  27  Pac.  245,  246; 
Wolfley  V.  Lebanon  M.  Co.,  4  Colo.  112,  13  Morr.  Min.  Rep.  282. 


1435         APPLICATIONS  PRIOR  TO  ACT  OF  1872.        §  604 

under  the  act  of  1866,  while  receiving  the  supplemental 
rights  and  privileges  conferred  by  the  act  of  1872/° 
This  we  understand  to  be  the  logical  result  of  the  deci- 
sions." 

As  a  patent  relates  back  to  the  inauguration  of  the 
right,'-  the  proceedings  under  which  title  originated 
may  be  proved.     This  is  no  attack  upon  the  patent.'^ 

It  has  been  urged  that  the  cases  of  Lakin  v.  Dolly  ^* 
and  Lakin  v.  Roberts'^  are  authority  for  the  proposi- 
tion that  after  the  passage  of  the  act  of  1872  no  patent 
could  issue  for  a  mining  claim  located  prior  to  the 
passage  of  the  act  for  a  surface  exceeding  three  hun- 
dred feet  in  width  on  each  side  of  the  center  of  the 
vein,  whatever  greater  rights  the  locator  might  have 

10  As  to  rights  in  secondary  veins  within  patented  claims  based  on 
locations  made  under  the  act  of  1866,  see  ante,  §  593. 

11  Eureka  Cons.  M.  Co.  v.  Kichmond  M.  Co.,  4  Saw.  302,  Fed.  Cas. 
No.  4548,  9  Morr.  Min.  Eep.  578;  Carson  City  G.  &  S.  M.  Co.  v.  North 
Star  M.  Co.,  73  Fed.  597,  599,  83  Fed.  658,  28  C.  C.  A.  333,  19  Morr. 
Min.  Rep.  118;  Cons.  Wyoming  v.  Champion  M.  Co.,  63  Fed.  540,  541, 
18  Morr.  Min.  E«p.  113;  New  Dunderberg  v.  Old,  79  Fed.  598,  601,  25 
C.  C.  A.  116;  Argonaut  M.  Co.  v.  Kennedy  M.  Co.,  131  Cal.  15,  82  Am. 
St.  Eep.  317,  63  Pac.  148,  15],  21  Morr.  Min.  Rep.  163;  Central  Eureka 
M.  Co.  V.  East  Central  Eureka  M.  Co.,  146  Fed.  147,  79  Pac.  834,  835, 
9  L.  R.  A.,  N.  S.,  940;  East  Central  Eureka  M.  Co.  v.  Central  Eureka 
M.  Co.,  204  U.  S.  266,  27  Sup.  Ct.  Rep.  258,  51  L.  ed.  476. 

12  St.  Louis  Smelting  Co.  v.  Kemp,  104  U.  S.  636,  640,  26  L.  cd. 
875,  11  Morr.  Min.  Rep.  673;  Kahn  v.  Old  Telegraph  Co.,  2  Utah, 
174,  11  Morr.  Min.  Eep.  645;  Deno  v.  Griffin,  20  Nev.  249,  20  Pac. 
308,  309;  Eureka  Case,  4  Saw.  302,  Fed.  Cas.  No.  4548,  9  Morr.  Min. 
Eep.  578;  Butte  City  Smokehouse  Lode  Cases,  6  Mont.  397,  12  Pac. 
858,  861;  Talbott  v.  King,  6  Mont.  76,  9  Pac.  434,  440;  Silver  Bow 
M.  &  M.  Co.  V.  Clark,  5  Mont.  378,  5  Pac.  570,  580;  post,  §  783. 

13  St.  Louis  Smelting  Co.  v.  Kemp,  104  U.  S.  636,  645,  26  L.  ed. 
875,  11  Morr.  Min.  Eep.  673;  Kahn  v.  Old  Telegraph  Co.,  2  Utah,  174, 
11  Morr.  Min.  Eep.  645;  Last  Chance  M.  Co.  v.  Tyler,  61  Fed.  557, 
565,  9  C.  C.  A.  613;  post,  §  783. 

14  53  Fed.  333. 

16  54  Fed.  461,  4  C.  C.  A.  438. 


§  604     t'ATENTS  APPLIED  FOR  PRIOR  TO  ACT  OF  1872.      1436 

had  as  to  such  surface  under  the  pre-existing  local 
rules. 

The  facts  of  this  case  may  be  illustrated  by  the  aid 
of  figure  97.  The  unshaded  portion  embraced  the  town 
of  Johnsville,  covering  252.95  acres  of  land,  connected 
with  the  location  of  one  lode.  The  application  for  pat- 
ent was  made  in  1867,  but  no  entry  or  payment  was 
made  until  1877. 

It  appeared  at  the  trial  of  the  case,  upon  an  agreed 
statement  of  facts,  that  when  the  Mammoth  claim  was 
located  there  was  no  law,  local  rule,  usage  or  custom 
authorizing  surface  to  be  appropriated  in  excess  of  one 
hundred  feet  on  each  side  of  the  vein,  and  that  the  un- 
shaded area  shown  on  the  diagram  never  was  covered 
by  the  Mammoth  location.^^ 


Figure  97. 

This  was  an  admission  which  practically  went  to  the 

jurisdiction  of  the  land  department  to  issue  a  patent 

for  an  area  in  excess  of  the  amount  allowed  by  local 

rules."     This  case  has  been  twice  explained  by  the 

16  Statement  by  the  court,  Lakin  v.  Dolly,  53  Fed.  333. 

17  See  Parle/s  Park  S.  M.  Co.  v.  Kerr,  130  U.  S.  256,  261,  9  Sup. 
Ct.  Eep.  511,  32  L.  ed.  908,  17  Morr.  Min.  Eep.  201. 


1437         APPLICATIONS  PRIOR  TO  ACT  OF  1872.         §  604 

appellate  court  which  handed  down  the  opinion.  The 
first  explanation  is  found  in  what  is  known  as  the 
North  Star  case/*  wherein  a  patent  had  been  issued 
for  a  surface  varying  from  six  hundred  and  fifty  feet 
to  twelve  hundred  and  fifty  feet  in  width.  The  loca- 
tions were  made  and  patent  applied  for  prior  to  the 
passage  of  the  act  of  1872,  but  patent  did  not  issue 
until  1875.  The  validity  of  the  patent  was  assailed  on 
the  ground  that  it  granted  more  surface  than  was  al- 
lowed under  the  act  of  1872,  and  the  Lakin-DoUy- 
Eoberts  case  was  relied  upon  to  support  the  attack. 

The  court  declined  to  accept  the  Lakin-Dolly  case  as 
applicable,  by  reason  of  the  difference  in  the  facts.  In 
the  North  Star  case  there  was  nothing  in  the  record  to 
show  any  limitation  as  to  the  amount  of  surface  al- 
lowed under  the  local  rules,  and  it  was  conceded  that 
the  original  location  covered  the  entire  tract  patented. 

The  same  court  subsequently,  in  the  case  of  Peal)ody 
Gold  Mining  Company  v.  Gold  Hill  Mining  Company,'^ 
was  again  called  upon  to  meet  the  same  contention.  In 
doing  so  it  thus  stated  its  views  as  to  its  decision  in 
the  Lakin-Dolly-Koberts  case: — 

The  admitted  facts  effectually  rebutted  the  pre- 
sumption which  otherwise  would  have  attended  the 
patent,  the  presumption  that  the  locator  was  lawfully 
entitled  to  all  the  premises  described  in  his  grant, 
and  that  all  the  previous  requisites  of  the  law  had 
been  complied  with. 

A  patent  issued  under  the  later  act,  based  upon  an 
application  for  patent  filed  under  the  earlier,  will  con- 
vey such  rights  as  are  accorded  under  either  act,  pro- 
vided, of  course,  that  the  locator  has  not  in  presenting 

18  Carson  City  G.  &  S.  M.  Co.  v.  North  Star  M.  Co.,  83  Fed.  658, 
668,  28  C.  C.  A.  333,  19  Morr.  Min.  Rep.  118. 

ifi  111  Fed.  817,  821,  49  C.  C.  A.  637,  21  Morr.  Min.  Rep.  591. 


§  608      OBSTACLES    INTERRUPTING    EXTRALATERAL    RIGHT.        1438 

his  diagram  placed  a  limitation  on  his  rights  beyond 
which  he  could  not  go  under  either  act.^°  Patents 
issued  upon  locations  made  prior  to  the  act  of  1872 
usually  contain  a  recital  that  they  are  issued  under 
both  laws. 


Aeticle  V. 


Legal  Obstacles  Interrupting  the 
extralateral  elght. 


608. 


609. 


a  surface  boundary  of  a 
prior  grant,  which  grant 
did  not  in  terms  or  infer- 
entially  reserve  the  right 
of  underground  invasion 
— Senior  mining  locations 
not  of  this  class. 
Same — Prior       agricultural 

grants. 
Same  —  Other    classes    of 
grants. 

§  614.    Union  of  veins  on  the  dip. 

§  615.  Identity  and  continuity  of 
veins  involved  in  the  ex- 
ercise of  the  extralaterai 
right. 


§612. 


§613. 


Classes  of  impediments  in- 
terrupting the  right  of 
lateral  pursuit. 
Prior  appropriation  by  a 
regular  valid  location  of 
a  segment  of  the  same 
vein  without  conflict  as  to 
surface    area. 

§  610.  Qualification  of  the  doctrine 
that  the  extent  of  the 
extralaterai  right  of  dif- 
ferent locators  on  the 
same  vein  is  to  be  de- 
termined by  priority  of 
location. 

§611.  The  encountering  of  a  verti- 
cal plane   drawn  through 

§  608.  Classes  of  impediments  interrupting  the 
right  of  lateral  pursuit. — There  are  conditions  under 
which  the  pursuit  of  a  vein  on  its  downward  course,  out- 
side of  and  beyond  the  vertical  planes  drawn  through 
the  side-lines,  may  be  interrupted,  although  the  surface 
conditions  as  to  apex,  course  of  the  vein,  and  the 
boundary  lines  may  approximate  the  ideal  standard. 
The  legal  obstacles  which  may  thus  be  interposed  to 
obstruct  the  right  are,  generally  speaking,  referable 
to  the  necessity  for  recognizing  prior  grants  and  the 

20  New  Dunderberg  v.  Old,  79  Fed.  598,  604,  25  C.  C.  A.  116;  Davis 
▼.  Shepherd,  31  Colo.  141,  72  Pac.  57,  22  Morr.  Min.  Eep.  575. 


1439  CONFLICTINQ  EXTRALATERAL  RIGHTS.  §  609 

application    of   the   maxim,  ''First    in    time,  first  in 
right." 

AVe  can  conceive  of  three  classes  of  such  obstacles: — 

(1)  Prior  appropriation  by  a  regular  valid  location 
of  a  segment  of  the  same  vein ; 

(2)  The  encountering  of  a  vertical  plane  drawn 
through  a  surface  boundary  of  a  prior  grant,  which 
grant  did  not  in  terms  or  inferentially  reserve  the  right 
of  underground  invasion  to  the  prospective  proprietor 
of  a  lode  location ; 

(3)  The  union  on  the  dip  of  the  vein  of  a  junior  with 
that  of  a  senior  locator. 

§  609.  Prior  appropriation  by  a  regular  valid  loca- 
tion of  a  segment  of  the  same  vein  without  conflict  as 
to  surface  area. — The  principles  involving  the  inter- 
ruption of  a  junior  extralateral  right  where  it  en- 
counters that  of  a  prior  grant  or  location  have  been 
discussed  in  a  previous  section.  It  may  be,  however, 
expedient  to  state  such  principles  in  a  more  concise 
form.  It  is  axiomatic  that  the  government  has  no 
more  power  to  grant  the  same  thing  twice  than  a 
private  proprietor.^^ 

It  is  bound  by  the  same  rules  of  good  faith  and  good 
conscience  which  bind  ordinary  individuals.  A  patent 
issued  for  lands  which  have  been  previously  granted, 
reserved  from  sale,  or  appropriated,  is  void." 

A  valid  mining  location,  perfected  and  maintained 
under  the  law,  is  a  grant  from  the  government,"  and 

21  Fremont  v.  Flower,  17  Cal.  199,  79  Am.  Dec.  123,  12  Morr.  Min. 
Rep.  418. 

22  Morton  v.  State  of  Nebraska,  21  Wall.  660,  674,  22  L.  ed.  639, 
12  Morr.  Min.  Rep.  541;  Davis  v.  Weibbold,  139  U.  S.  507,  529,  11  Sup. 
Ct.  Rep.  628,  35  L.  ed.  238;  United  States  v,  Winona  &  St.  Paul  K.  R., 
67  Fed.  948,  956,  15  C.  C.  A.  96. 

23  Ante,  §  539. 


§  609      OBSTACLES    INTERRUPTING    EXTRALATERAL    RIGHT.        1440 

the  estate  granted  in  tlie  vein  in  depth,  beyond  the 
boundaries,  is  of  the  same  dignity  as  that  conveyed 
within  the  boundaries.^* 

A  perfected  valid  lode  location  is,  as  a  general  rule, 
predicated  upon  the  existence,  within  the  defined 
boundaries,  of  some  part  of  the  apex  of  a  discovered 
lode.-°  To  the  extent,  at  least,  that  this  top  or  apex 
is  included  within  vertical  planes  drawn  through  the 
surface  boundaries,  the  lode  is  granted.  If  the  posi- 
tion of  the  lode,  with  reference  to  the  surface  bound- 
aries, is  such  that  the  locator  is  entitled,  under  the 
rules  heretofore  enumerated,  to  pursue  the  vein  on  its 
downward  course  beyond  the  vertical  bounding  planes, 
drawn  through  his  side-lines,  he  is  granted  such  seg- 
ment of  the  lode  in  its  entire  depth  as  lies  between 
vertical  bounding  planes  drawn  through  his  end-lines 
produced  indefinitely  in  their  own  direction,  subject 
only  to  the  condition  that  no  portion  of  such  segment 
has  been  the  subject  of  a  prior  grant  which  is  still 
valid  and  subsisting.  Let  us  illustrate  this  by  the  use 
of  a  diagram. 

In  figure  98  we  have  represented  a  lode,  x-x,  with  a 
dip  in  the  direction  indicated  by  the  arrow,  passing  on 
its  onward  course  or  strike  through  the  respective  loca- 
tions of  A,  B,  and  C.  Of  these  locations,  B  alone  con- 
forms to  the  ideal  standard.  Its  end-lines  cross  the 
lode  at  right  angles  to  its  general  course  as  it  traverses 
the  location.  A  and  C  each  have  parallel  end-lines 
crossing  the  vein,  but  at  obtuse  or  acute  angles.  As 
we  have  heretofore  observed,^®  this  is  no  objection  to 
either  the  validity  or  regularity  of  the  locations.  The 
law  does  not  require  that  end-lines  shall  be  at  right 

24  Ante,  §  568. 

25  Aiite,  §  364. 

26  Ante,  §  365. 


14-41  CONFLICTING  EXTRALATERAL  RIGHTS,  §  609 

angles  to  the  course  of  tlie  vein.  It  inflicts  no  punish- 
ment upon  the  locators  of  A  or  C  for  failure  to  so  con- 
struct them.  Individually  considered  in  the  eyes  of 
the  law,  A  and  C  are  just  as  complete  and  regular 
locations  as  B.  Each  carves  out  a  segment  of  the  vein 
at  the  surface,  fifteen  hundred  feet  in  length,  included 


rn 


f^^ 


ve 


Figure  98. 

within  parallel  end-lines,  which  are  crossed  by  the  lode 
on  its  onward  course;  and  if  found  isolated  and  un- 
affected by  rights  asserted  by  neighboring  locators, 
each  would  be  entitled  to  that  segment  throughout  its 
entire  depth — that  is,  so  much  of  the  vein  as  is  found 
between  vertical  bounding  planes  drawn  through  their 
respective  end-lines  produced  indefinitely. 

The  priorities  as  to  title  are  in  the  order  named,  A 
being  prior  in  point  of  time  to  both  B  and  C,  and  B 
being  prior  to  C.  When  we  speak  of  priority  of  title, 
we  mean  priority  of  location. 

A  junior  locator  may  have  a  patent,  while  the 
senior's  title  rests  in  a  perfected  and  subsisting  loca- 
tion.    Under  such  circumstances  the  patent  has  been 

Lindley  on  M. — 91 


§  609   OBSTACLES  INTERRUPTING  KXTRALATERAL  RIGHT.   1442 

issued  in  subordination  to  the  senior  locator's  rights. 
When  the  latter  receives  his  patent,  the  title  thus  ob- 
tained will  relate  back  to  the  date  of  his  location." 

A,  being  the  prior  locator,  has  secured  by  his  per- 
fected location  a  grant  to  the  segment  of  the  vein  found 
between  vertical  bounding  planes  drawn  through  his 
end-lines  produced  indefinitely  in  their  own  direction 
{a-h-b',  c-d-d') — that  is,  the  segment  x. 

The  title  to  this  segment  of  the  lode  in  its  entire 
depth,  beyond  the  vertical  plane  drawn  through  the 
side-line,  h-d,  has  been  severed  from  the  title  to  the 
superjacent  soil,  and  no  subsequent  grant,  appropria- 
tion, or  reservation,  whether  of  the  overlying  surface 
or  of  any  other  part  of  the  lode,  can  curtail  or  abridge 
any  of  A's  rights,  so  long  as  his  location  is  preserved 
in  its  integrity.  He  has  the  right  to  the  pursuit  of  this 
segment  in  depth  until  he  encounters  some  legal 
obstacle  interrupting  its  further  pursuit.  A  subse- 
quent grant  is  not  such  a  legal  obstacle.  B,  the  junior 
locator,  cannot  locate  a  continuation  of  the  outcrop,  and 
so  construct  the  end-lines  of  his  location  that  vertical 
planes  drawn  through  them  and  their  extension  would 
intersect  the  vertical  end-line  planes  of  A,  the  senior 
locator,  and  deprive  him  of  any  portion  of  the  segment 
X.  B,  by  his  junior  location,  obtains  title  to  the  seg- 
ment y,  and,  if  we  are  correct  in  the  contention  hereto- 

27  stark  V.  Starrs,  6  Wall.  402,  18  L.  ed.  925;  Talbott  v.  King,  6 
Mont.  76,  9  Pac.  434,  440;  Jacob  v.  Lorenz,  98  Cal.  332,  33  Pae.  119, 
122;  Last  Chance  M.  Co.  v.  Tyler  M.  Co.,  61  Fed.  557,  9  C.  C.  A. 
613;  St.  Louis  Smelting  Co.  v.  Kemp,  104  U.  S.  636,  647,  26  L.  ed. 
875,  11  Morr.  Min.  Eep.  673;  Kahn  v.  Old  Telegraph  Co.,  2  Utah,  174, 
11  Morr.  Min.  Rep.  645;  Dene  v.  Griffin,  20  Nev.  249,  20  Pac.  308, 
309;  Eureka  Case,  4  Saw.  302,  Fed.  Cas.  No.  4548,  9  Morr.  Min.  Eep. 
578;  Butte  City  Smokehouse  Lode  Cases,  6  Mont.  397,  12  Pac.  858, 
860;   Silver  Bow  M.  &  M.  Co.  v.  Clark,  5  Mont.  378,  5  Pac.  570,  580. 

For  full  discussion  of  the  doctrine  of  relation,  see  yost,  §  783. 


14-13  CONFLICTING  EXTRALATERAL  RIGHTS.  §  609 

fore  made,"  the  remainder  of  the  underground  seg- 
ment of  the  vein  within  his  extended  end-line  planes 
after  they  emerge  from  the  conflict  with  A.  C,  who 
follows  him,  takes  the  segment  ^,  with  the  remainder 
of  the  underground  parts  of  the  vein  within  his  ex- 
tended end-line  planes  after  they  pass  the  planes  of 
conflict  with  A  and  B.  As  was  said  by  the  supreme 
court  of  the  United  States  in  the  Argentine-Terrible 
case, — 

Assuming  that  on  the  same  vein  there  were  surface 
outcroppings  within  the  boundaries  of  both  claims, 
the  one  first  located  necessarily  carried  the  right  to 
work  the  vein.^® 

An  inspection  of  the  diagram  (figure  67)  presented 
in  connection  with  a  previous  discussion  of  this  case^° 
forcibly  illustrates  the  rule.  The  prior  valid  appro- 
priation by  the  Adelaide  of  a  portion  of  the  apex,  as 
indicated  in  figure  67,  interrupted  the  extralateral 
right  of  the  junior  locators  holding  a  portion  of  the 
apex  of  the  same  vein  in  the  Camp  Bird  and  Pine 
claims. 

As  was  said  by  Judge  Hawley,  speaking  for  the  cir- 
cuit court  of  appeals,  ninth  circuit,  in  the  Tyler-Last 
Chance  case, — 

In  cases  of  controversy,  where  the  right  exists  un- 
der each  valid  location  to  follow  the  lode  in  its  down- 
ward course,  it  necessarily  follows  that  both  loca- 
tions cannot  rightfully  occupy  the  same  space  of 
ground;  and  in  all  cases  where  a  controversy  of  this 
kind  arises,  the  prior  locator  must  prevail,  precisely 

28  Ante,  §  596. 

29  Argentine  M.  Co.  v.  Terrible  M.  Co.,  122  U.  S.  478,  484,  7  Sup. 
Ct.  Rep.  1356,  30  L.  ed.  1140,  17  Morr.  Min.  Rep.  109;  Jefferson  M. 
Co.  V.  Anchoria-Leland  M.  &  M.  Co.,  32  Colo.  176,  75  Pac.  1070,  1072, 
64  I,.  R.  A.  925. 

3C  Ante,  §  587,  p.  1335. 


§  609      OBSTACLES    rNTTERRUPTING    EXTRALATERAL    RIGHT.        1444 

as  in  cases  of  like  controversy  between  locations 
overlapping  each  other  lengthwise  on  the  course  of 
the  lode.^^ 

A  simplified  diagram  of  the  Tyler  case  will  illustrate 
the  doctrine,  as  applied  to  the  hypothetical  case  under 
consideration. 

Figure  99  is  based  upon  the  diagram  appearing  in 
connection  with  the  opinion  of  the  supreme  court  of  the 


^^   .^ 


^  6 

Figure  90. 
United  States."    A  more  elaborate  representation  of 
this  case  is  found  in  figure  73,  in  connection  with  the 

31  Tyler  v.  Sweeney,  54  Fed.  284,  295,  4  C.  C.  A.  329;  Jeflferson  M. 
Co.  V.  Anchoria-Leland  M.  &  M.  Co.,  32  Colo.  176,  75  Pac.  1070,  64  L. 
R.  A.  925. 

32  Last  Chance  M.  Co.  v.  Tyler,  157  U.  S.  684,  15  Sup.  Ct.  Rep.  733, 
39  L.  ed.  860,  18  Morr.  Min.  Eep.  205. 


1445  CONFLICTING  EXTRALATERAL  RIGHTS.  §  609 

discussion  in  section  591.  Figure  99  eliminates  tlie 
triangular  tract  shown  on  figure  73  which  involved  a 
surface  conflict  between  the  Tyler  and  Last  Chance 
claims,  and  presents  the  Tyler  claim  as  patented,  a  claim 
regular  in  form,  with  the  vein  passing  through  two  end- 
lines.  The  Last  Chance  presents  a  location  with  the 
vein  crossing  two  side-lines.  With  the  priority  estab- 
lished in  favor  of  the  Tyler,  there  can  be  no  question 
but  that  the  owners  of  that  claim  would  be  entitled  to 
the  segment  of  the  vein  found  within  vertical  planes 
drawn  through  the  end-lines  as  produced  {1-2-a  and 
5-6-h ) .  With  the  priorities  established  in  favor  of  the 
Last  Chance,  and  assuming  that  the  owners  of  the 
latter  claim  have  a  right  to  produce  their  side-end-line 
planes  westerly  in  the  direction  of  c  and  d,  respectively, 
of  the  correctness  of  which  assumption  there  can  be 
no  doubt, ^^  the  extralateral  right  of  the  Tyler  is  inter- 
rupted when  the  vertical  plane  drawn  through  10-7-c 
is  encountered  (but  if  our  previous  contentions  are 
sustained,^*  it  may  be  resumed  south  of  the  Last 
Chance  south  plane,  9-8-d).  As  was  said  in  this  case 
by  the  supreme  court  of  the  United  States: — 

On  the  assumption  that  the  action  of  the  owners  of 
the  Tyler  claim,  in  excluding  from  their  application 
a  portion  of  their  claim,  was  legal,  obviously  the 
priority  of  location  becomes  a  pivotal  question.  For 
while  the  disputed  ore  is  on  the  dip  of  the  vein  within 
the  extended  vertical  planes  of  the  end-lines  of  the 
Tyler  claim,  it  is  also  within  the  legal  end-lines  of 
the  Last  Chance  claim  and  on  the  dip  of  the  vein  as 
it  passes  through  that  claim.  Naturally,  therefore, 
the  controversy  in  the  circuit  court  was  upon  the 
priority  of  location.^^ 

33  Ante,  §  58&;   Tyler  v.  Sweeney,  79  Fed.  277,  24  C.  C.  A.  573. 

34  Ante,  §  596. 

8»  157  U.  S.  683,  6S7,  15  Sup.  Ct.  Rep.  733,  39  L.  ed.  861,  18  Morr. 


§  610   OBSTACLES  INTERRUPTING  EXTRALATERAL  RIGHT.   1446 

With  respect  to  the  rights  of  the  Republican  Frac- 
tion, with  an  assumed  priority  over  the  others,  by 
reason  of  the  form  of  the  location,  it  has  no  extralateral 
right,  as  it  was  located  under  the  act  of  1872.  This 
location,  it  would  seem,  covers  only  a  part  of  the 
width  of  the  apex  as  shown  on  figure  73.^®  If  the 
''broad  lode"  doctrine  announced  by  the  circuit  court 
of  appeals  in  the  King- Viola-San  Carlos  case  is  cor- 
rect," the  Republican  claim  would,  with  priority  in  its 
favor,  hold  everything  within  its  vertical  boundaries, 
and  the  extralateral  right  of  the  Tyler  would  be  in- 
terrupted whenever  its  end-line  planes  encountered 
the  vertical  planes  of  the  Republican  Fraction.  If  it 
covered  no  part  of  the  apex  of  the  vein,  there  would 
be  no  interruption  of  the  extralateral  right  of  the  Tyler 
so  far  as  the  Republican  Fraction  is  concerned,  a  sub- 
ject discussed  in  the  next  section. 

§  610.  Qualification  of  the  doctrine  that  the  extent 
of  the  extralateral  right  of  different  locators  on  the 
same  vein  is  to  be  determined  by  priority  of  location. — 
What  we  have  heretofore  said  upon  the  subject  of  prior 
appropriation  has  been  based  upon  the  assumption  of 
the  existence  of  regular  valid  locations — that  is,  loca- 
tions each  embracing  within  its  respective  boundaries 
some  portion  of  the  apex  of  the  same  vein,  each  having 
the  right  of  extralateral  pursuit,  to  some  extent  at 
least. 

It  does  not  necessarily  follow,  nor  is  it  to  be  inferred 
from  the  authorities  cited,  that  the  existence  of  any 
portion  of  the  apex  of  a  vein  within  the  boundaries 

Min.  Eep.  205;   Jefferson  M.  Co.  v.  Anchoria-Leland   M.   Co.,  32   Colo. 
176,  75  Pac.  1070,  64  L.  E.  A.  925. 

36  E^publican  M.  Co.  v.  Tyler  M.  Co.,  79  Fed.  733,  25  C.  C.  A.  178. 

37  Fig.  61,  p.  1313. 


1447 


PRIORITY  AS  GOVERNING  RIGHTS. 


^CAQ 


gives  the  owner  of  a  prior  location  all  of  the  vein  which 
may  be  found  within  the  vertical  planes  drawn  throu^^h 
those  boundaries.  We  have  heretofore  endeavored  to 
show  that  according  to  the  spirit  and  intent  of  the 
existing  law  the  owner  of  a  lode  location  is  entitled  to 
only  so  much  of  the  vein  on  its  downward  course  as  he 
has  apex  within  his  claim,  and  that  the  vertical  planes 
bounding  this  right  must  under  all  circumstances  be 
parallel,  or,  at  least,  nondivergent  in  the  direction  of 
the  dip. 

What  we  now  wish  to  establish  is,  that  any  portion  of 
the  lode  lying  outside  of  and  beyond  these  vertical  end- 
line  planes,  found  underneath  the  surface  of  the  prior 
location,  will  belong  to  a  subsequent  locator  who,  by  a 
regular  valid  location,  appropriates  such  part  of  the 
apex  as  is  found  outside  of  the  boundaries  of  the  first 
locator.  That  our  meaning  may  be  plain,  let  us  again 
resort  to  the  use  of  a  diagram. 
N 


^i- 


jr 


Figure  100. 


§  610      OBSTACLES    INTERRUPTING    EXTRALATERAL    RIGHT.        1448 

Figure  100  represents  two  locations  (A  and  B)  on 
the  same  vein,  x-x,  A's  being  prior  in  point  of  time. 
As  to  A's  location,  the  lode  crosses  one  end-line,  c-d, 
and  a  side-line,  a-e-c,  having  within  its  boundaries,  let 
us  say,  four  hundred  linear  feet  of  the  apex  of  the 
vein.     If  the  views  heretofore  announced  are  sound,^' 
A's  extralateral  right   is   defined   by  vertical  planes 
drawn  through  c-d-d'  and  e-f-f.    What  becomes  of 
that  portion  of  the  vein  lying  underneath  A's  surface 
west  of  the  vertical  plane  drawn  through  e-P    It  may 
be  admitted  that,  prima  facie,  it  belongs  to  A.     But 
when  B  makes    his    location,  including    the  apex,  as 
shown  on  the  diagram,  without  in  any  way  conflicting 
with  A's  surface   boundaries,  is    his    right  of  extra- 
lateral  pursuit  interrupted  and  abridged  by  a  vertical 
plane  drawn  through  A's  north  side-line,  a-e-c?     Such 
result  would  ensue  if  the  vein  crossed  both  side-lines 
in  the  manner  shown  in  the  Flagstaff-Tarbet,  Argen- 
tine-Terrible, and  King-Amy  cases,  because  the  side- 
lines in  that  class  of  cases  perform  all  of  the  functions 
of  end-lines.     But  in  the  case  now  supposed,  the  line 
a-e-c  does  not  perform  all  of  such  functions,  because  its 
direction  does  not,  under  any  circumstances,  operate 
to  determine  the  limits  of  the  extralateral  right.     It 
stops  the  pursuit    of   the   vein  on  its  onward  course. 
But  this  is  true  of  any  line  crossed  by  a  vein  on  its 
course.     It  is  now  well  settled  that  A  is,  in  the  presence 
of  junior  locators,  such  as  B,  entitled  to  only  so  much 
of  the  vein  in  depth  as  he  has  apex  within  his  claim, — 
i.  e.,  four  hundred  feet.     In  other  words,  the  segment 
of  the  vein  underneath  A's  surface,  lying  west  of  the 
bounding  plane    drawn    through  e-f,  is  reserved    by 
operation  of  law  out  of  the  grant  to  A,  and  B  owns 
the  segment  of  the  vein  within  the  bounding  planes 

38  Ante,  §  591. 


1449  PRIORITY  AS  GOVERNING  RIGHTS.  §  610 

g-h-h'  and  k-l-V,  altliough  a  portion  of  such  segment 
underlies  A's  surface.  This  is  an  instance  where  the 
question  of  priority  is  immaterial. 

This  consequence  would  follow,  irrespective  of  the 
priority  of  the  locations.  It  would  depend  on  the 
question  as  to  what  part  of  the  vein  the  respective 
locations  properly  cover  and  appropriate.^' 

The  circuit  court  of  appeals  for  the  eighth  circuit,  in 
the  case  of  the  Colorado  Central  Consolidated  Mining 
Company  v.  Turck,"  held  that  the  statute  conferring 
the  right  to  follow  a  lode  outside  of  the  side-lines  of  a 
location,  when  the  top,  or  apex,  of  the  lode  lies  within 
the  boundaries  of  the  location,  does  not,  in  terms  or 
by  necessary  implication,  limit  the  exercise  of  that 
right,  especially  where  mining  claims  are  involved,  to 
cases  where  the  adjoining  claims  are  held  under  junior 
locations  or  patents,  and  in  the  Providence-Chamjoion 
case,"  Judge  Hawley  determined  that  the  Champion, 
the  junior  locator,  might  follow  that  portion  of  the 
contact  vein  underlying  its  apex,  underneath  that  part 
of  the  Providence  surface  lying  beyond  the  planes 
determined  by  the  court  to  be  the  end-line  planes  of 
the  location.  The  court  awarded  to  the  junior  apex 
locator  that  segment  of  the  vein  on  its  dip  underlying 
the  parallelogram  h-i-k-h%  shown  upon  figure  81  (on 
page  1370),  although  such  overlying  surface  was  cov- 
ered by  the  senior  location  and  patent,  which  ruling 
was  affirmed  by  the  supreme  court  of  the  United 
States." 

39  Flagstaff  S.  M.  Co.  v.  Tarbet,  98  U.  S.  463,  469,  25  L.  ed.  253, 
9  Morr.  Min.  Rep.  607. 

40  50  Fed.  888,  2  C.  C.  A.  67;   54  Fed.  262,  4  C.  C.  A.  313. 

<i  Walrath  v.  Champion  M.  Co.,  63  Fed.  552,  558,  18  Morr.  Min.  Eep. 
113;   S.  C,  on  appeal,  72   Fed.   978,   19  C.   C.   A.  323. 

42  Id.,  171  U.  S.  294,  311,  18  Sup.  Ct.  Rep.  909,  43  L.  ed.  170,  19 
Morr.  Min.  Rep.  410. 


§  611      OBSTACLES    INTERRUPTING    EXTRALATEBAL    RIGHT.        1450 

The  contrary  rule  applied  to  the  hypothetical  case 
illustrated  in  figure  100  would  result  in  giving  to  A 
practically  fifteen  hundred  linear  feet  of  the  vein 
within  the  bounding  planes  drawn  through  his  surface 
lines,  with  only  four  hundred  feet  of  apex.  If  A  had 
simply  located  the  parallelogram  a-e-f-h,  he  would 
acquire  nothing  as  against  B,  because  of  the  nonexist- 
ence of  apex  within  his  boundaries.*^  Should  he  be 
permitted  to  hold  the  segment  of  the  vein  underlying 
this  parallelogram,  as  against  the  locator  of  the  apex 
(B),  simply  because  he  included  at  the  end  of  his 
claim  a  small  portion  of  the  apex  cut  by  one  end-line 
and  one  side-line?  We  think  not,  and  in  this  we  are 
supported  by  the  decision  of  the  supreme  court  of  the 
United  States  in  the  Niagara-Black  Kock  case  illus- 
trated and  discussed  in  section  591  (figure  75). 

The  decision  of  the  supreme  court  of  the  United 
States  in  the  Del  Monte  case,"  where  that  court  per- 
mitted the  junior  apex  proprietor,  the  Last  Chance,  to 
take  the  vein  on  its  downward  course  underneath  the 
Del  Monte,  the  senior  claim,  is,  we  think,  applicable  to 
the  conditions  here  discussed,  although  the  Del  Monte 
held  no  part  of  the  apex  of  the  vein.  We  present  this 
subject,  however,  in  the  next  section. 

§  611.  The  encountering  of  a  vertical  plane  drawn 
through  a  surface  boundary  of  a  prior  grant,  which 
grant  did  not  in  terms  or  inf  erentially  reserve  the  right 
of  underground  invasion — Senior  mining  locations  not 
of  this  class. — To  say  that  the  right  to  pursue  a  vein  on 
its  downward  course,  outside  of  and  beyond  vertical 
planes  drawn  through  the  lateral  boundaries,  is  inter- 

*3  Ante,  §  364. 

44  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  18 
Sup.  Ct.  Rep.  895,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370. 


1451  VEIN  DIPPING  BENEATH  PRIOR  GRANT.  §  611 

rupted  when  a  plane  drawn  through  the  surface  bound- 
aries of  a  prior  grant  is  encountered,  which  grant  did 
not  in  terms  or  inferentially  reserve  the  privilege  of 
underground  invasion,  is  but  the  statement  of  a  self- 
evident  proposition.  In  such  a  case  the  segment  of  the 
vein  underlying  the  surface  of  the  prior  grant  has  ])een 
conveyed,  the  title  to  it  has  passed  out  of  the  govern- 
ment, and  the  government  cannot  grant  the  same  thing 
twice.  This  is  elementary.  The  difficulty  lies  in  deter- 
mining to  what  extent,  if  any,  this  right  of  invasion  is 
preserved.  In  other  words,  when  and  under  what  con- 
ditions is  this  underground  segment  of  the  vein  deemed 
to  be  severed  from  the  estate  in  the  superjacent  sur- 
face, so  that  a  subsequent  locator  may  acquire  title  to 
it  by  appropriating  its  apex? 

As  between  mining  proprietors — that  is,  where  all 
the  parties  hold  and  claim  under  the  mining  laws  of 
congress — it  seems  to  be  generally  conceded  that  the 
apex  proprietor,  having  a  location  in  such  form  and 
with  his  vein  in  such  a  position  within  the  boundaries 
of  his  location  as  to  warrant  the  right  of  lateral  pur- 
suit under  ordinary  circumstances,  may  follow  such 
vein  in  its  downward  course,  into  and  underneath  the 
surface  of  all  other  mining  locations,  either  lode  or 
placer,  whether  they  be  prior  in  time  or  subsequent, 
unpatented  or  patented.  In  other  words,  there  is  re- 
served, as  a  matter  of  law,  out  of  every  grant  of  an 
estate  created  under  the  federal  mining  statutes,  all 
portions  of  veins  underlying  the  location,  which  veins 
have  their  tops,  or  apices,  outside  of  the  located  bound- 
aries. 

To  state  the  proposition  in  another  form:  The  apex 
lode  proprietor  with  a  regular  valid  location  is  granted 
the  right  to  pursue  his  vein  on  its  downward  course 
into  and  underneath  the  land  adjoining.     His  bound- 


§  611      OBSTACLES    ESTTEBBUPTING    EXTRALATERAL    RIGHT.        1452 

aries  may,  in  like  manner,  be  invaded  by  outside  apex 
proprietors.  The  rigbt  is  reciprocal.  A  placer  locator 
takes,  subject  to  this  privilege  of  a  lode  proprietor, 
present  or  prospective,  for  the  reason  that  the  Jaw  un- 
der which  he  acquires  the  right  to  locate  is  found  in  the 
general  body  of  the  mining  statutes,  and  must  be  con- 
strued in  connection  with  the  entire  system,  of  which 
it  forms  but  a  part. 

A  placer  location  is  not  a  location  of  lodes  or 
veins  underneath  the  surface,  but  is  simply  a  claim 
of  a  tract  or  parcel  of  ground  for  the  sake  of  loose 
deposits  of  mineral  upon  or  near  the  surface." 

The  reservation  of  ''known  lodes"  out  of  placers 
refers  to  such  lodes  as  have  their  apices  within  the 
placer  boundaries,  and  which  are  subject  to  appropria- 
tion within  such  boundaries,  notwithstanding  the  exist- 
ence of  the  placer  location.  A  vein  penetrating  under-  ^ 
neath  a  placer  surface  could  not  be  so  appropriated. 
Therefore,  in  dealing  with  placer  locations  and  placer 
patents,  it  is  not  necessary  that  the  underlying  segment 
of  the  vein  penetrating  underneath  the  placer  surface 
from  an  outside  apex  should  be  known  to  exist  at  the 
time  of  filing  the  application  for  a  placer  patent,  in 
order  to  effect  a  reservation  out  of  such  patent.  It  is 
reserved  by  the  theory  of  the  law.  It  is  severed  from 
the  public  domain,  and  is  subject  to  appropriation  by 
the  discoverer  of  the  apex.  It  does  not  pass  by  the 
placer  patent. 

We  think  that  the  doctrine  herein  outlined  finds 
ample  justification  in  the  authorities  cited  and  reason- 
ing applied  in  the  preceding  section.  As  was  said  by 
the  circuit  court  of  appeals,  eighth  circuit,  in  a  case 
heretofore  referred  to: — 

«  Clipper  M.  Co.  v.  Eli  M.  &  L.  Co.,  194  U.   S.  220,  223,   24  Sup. 
Ct.  Rep.  632,  48  L.  ed.  944. 


1453  VEIN  DIPPING  BENEATH  PRIOR  GRANT.  §  611 

The  statute  conferring  the  right  to  follow  a  lode 
outside  of  the  side-lines  of  a  location,  when  the  top 
or  apex  of  the  lode  lies  within  the  boundaries  of  the 
location,  does  not,  in  terms  or  by  necessary  implica- 
tion, limit  the  exercise  of  that  right,  especially  where 
mining  claims  are  involved,  to  cases  where  the 
adjoining  claims  are  held  under  junior  locations  or 
patents,  and  we  think  we  would  not  be  justified  in 
placing  such  a  limitation  upon  the  right  by  construc- 
tion. The  practice  of  the  general  land  office  for 
many  years  appears  to  have  been  opposed  to  the 
existence  of  any  such  limitation." 

And  in  another  case  between  the  same  parties  the 
same  court  reannounced  the  doctrine  as  follows: — 

If  the  patents  were  otfered  for  the  purpose  of 
showing  that  they  were  older  than  the  patent  for  the 
Aliunde  claim,  then  the  proof  was  immaterial,  for  the 
reason  that  the  plaintiff's  right  to  the  lode  in  con- 
troversy did  not  depend  upon  the  age  of  his  patent, 
but  upon  the  fact  that  the  apex  of  the  lode  was  within 
the  surface  boundaries  of  the  Aliunde  location.*^ 

As  we  have  heretofore  noted,  the  supreme  court  of 
the  United  States  has  fully  sanctioned  the  right  of  a 
junior  apex  proprietor  with  a  regular  valid  lode  loca- 
tion to  take  the  segment  of  the  vein  lying  between  his 
extended  end-line  planes  underneath  the  surface  of  the 
senior  claim,*^  a  question  fully  discussed  in  the  preced- 
ing section. 

46  Colorado  Cent.  Cons.  M.  Co.  v.  Turck,  50  Fed.  888,  895,  2  C.  C. 
A.  67.  This  case  is  commented  on  and  a  distinction  is  attempted  in 
Jefferson  M.  Co.  v.  Anchoria-Leland  M.  Co.,  32  Colo.  176,  75  Pac. 
1070,  1074,  64  L.  E.  A.  925.  As  vre  have  heretofore  pointed  out 
(§  594),  the  result  reached  in  the  last-named  case  is  opposed  to  the 
weight   of   authority. 

*^  Colorado  Cent.  Cons.  M.  Co.  v.  Turck,  70  Fed.  294,  298,  17  C.  C.  A. 
128. 

«  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  IS 
Sup.  Ct.  Rep.  S95,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370. 


§  612      OBSTACLES    INTERRUPTING    EXTRALATERAL    RIGHT.        1454 

§  612.  Same — Prior  agricultural  grants. — Has  the 
proprietor  of  a  regular  valid  lode  location  the  right  to 
pursue  his  vein  in  depth,  outside  of  his  lateral  bounding 
planes,  into  and  underneath  the  surface  of  an  agri- 
cultural grant,  the  title  to  which  grant  passed  to  the 
grantee  prior  to  the  discovery  and  location  of  the  min- 
ing claim  inclosing  the  apex?  In  other  words,  is  the 
underground  segment  of  the  vein  underlying  such  agri- 
cultural surface,  the  apex  lying  without  it,  and  within 
public  land,  reserved  by  the  law  out  of  the  agricultural 
patent,  although  at  the  time  of  the  issuance  of  such 
patent  such  vein  had  not  been  discovered  or  located? 
In  fact,  we  suppose  a  case  where  the  existence  of  such 
vein  was  absolutely  unknown. 

The  question  has  never  been  determined  by  the  su- 
preme court  of  the  United  States.  It  has  been  an- 
swered in  the  negative  by  Judge  Sawyer,  late  circuit 
judge  in  the  ninth  circuit,  in  the  case  of  Amador- 
Medean  G.  M.  Co.  v.  South  Spring  Hill  G.  M.  Co.," 
the  facts  of  which  were  as  follows: — 

On  June  15,  1874,  one  Hammack  entered  at  the  local 
land  office,  and  paid  for,  a  tract  of  agricultural  land, 
and  received  a  certificate  of  purchase,  which  the  court 
very  properly  treated  as  the  equivalent  of  a  patent, 
although  such  patent  did  not  in  fact  issue  until  Sep- 
tember 13, 1876.  On  July  18, 1876,  one  McKim  located 
and  acquired  the  right  to  a  gold  mining  claim  situated 
on  lands  adjacent  to  the  tract  embraced  in  Hammack 's 
entry.  McKim  subsequently  conveyed  to  the  South 
Spring  Hill  Mining  Company,  and  the  title  of  Ham- 
mack passed  ultimately  to  the  Amador-Medean  Gold 
Mining  Company.  The  South  Spring  Hill  in  working 
its  lode  followed  it  on  its  downward  course  across  the 

49  13  Saw.  523,  36  Fed.  668. 


1455  VEIN  DIPPING  BENEATH  PRIOR  GRANT.  §  612 

vertical  plane  drawn  through  the  boundary  of  the 
Hammack  tract.  The  action  was  ejectment,  to  recover 
the  possession  of  that  portion  of  the  vein  lyins:  under- 
neath the  surface  of  the  agricultural  patent.  The  pat- 
ent contained,  after  the  granting  clause,  the  follow- 
ing:— 

And  also,  subject  to  the  rights  of  the  proprietor  of 
a  vein  or  lode,  to  extract  and  remove  his  ore  there- 
from should  the  same  be  found  to  penetrate  or  inter- 
sect the  premises  hereby  granted  as  provided  by  law. 

We  may  suggest  that  the  insertion  of  this  reserva- 
tion is  of  no  particular  significance.  Independent  of 
the  question  of  its  proper  interpretation,  unless  the  law 
authorized  it,  it  could  neither  enlarge  nor  abridge  the 
rights  conferred  by  the  patent. 

The  supreme  court  of  California,  in  referring  to  this 
exception  in  agricultural  patents,  says : — 

We  have  not  been  referred  to  any  law  authorizing 
the  insertion  of  this  clause,  and  it  was  held  in  Cowell 
V.  Lammers,  10  Saw.  246,  that  a  reservation  of  min- 
eral land  in  an  agricultural  patent  is  void.^° 

We  have  heretofore  discussed  the  reservation  in- 
volved in  Cowell  v.  Lammers.^'  A  railroad  patent  had 
been  issued  with  a  clause  excepting  "mineral  land 
should  any  be  found  to  exist."  The  reservation  usu- 
ally found  in  agricultural  patents  refers  to  the  right 
of  the  proprietor  of  a  vein  or  lode  to  follow  it  down- 
ward underneath  the  patented  agricultural  surface. 
The  supreme  court  of  California  did  not  purport  to 
determine  the  invalidity  of  the  reservation.  It  waived 
the  question  and  held  that  the  court  below  construed 
the  clause  as  in  any  event  only  subjecting  the  patented 

80  Paterson  v.  Ogden,  141  Cal.  43,  99  Am.  St.  Rep.  31,  74  Pac.  443. 
61  Ante,  §  161. 


§  612      OBSTACLES    INTERRUPTING    EXTRALATERAL    RIGHT.        1456 

land  to  the  right  of  the  mining  claimant  to  follow  the 
vein  on  its  downward  course.  The  mineral  claimant 
in  that  case  was  claiming  a  mining  location  situated 
within  the  patented  agricultural  surface. 

The  reservation  referred  to  and  criticised  by  the 
court  had  its  origin  undoubtedly  during  the  time  the 
act  of  1866  was  in  force.  Section  2  of  that  act"  ex- 
pressly provided  that  the  land  adjoining  should  be  sold 
subject  to  this  condition. 

The  patentee's  right  to  follow  the  dip  of  his  vein 
exists  by  virtue  of  the  law,  whether  the  express  grant 
of  such  right  is  contained  in  the  patent  or  not ;  ^^  and 
conversely,  if  this  right  is  reserved  by  the  law  out  of 
a  prior  grant,  it  is  immaterial  whether  any  clause  of 
exception  or  limitation  is  embodied  in  the  patent.  It 
is  the  law,  and  not  the  instrument  of  conveyance,  which 
creates  the  reservation.  As  there  is  nothing  cabalistic 
in  the  phraseology  of  the  patent,  it  is  an  element  of  no 
moment,  except  in  so  far  as  it  has  a  tendency  to  exhibit 
the  rule  of  construction  applied  by  the  land  department 
to  the  law  it  is  called  upon  to  administer.  The  ques- 
tion under  consideration  is  to  be  solved  without  regard 
to  the  precise  language  embodied  in  patents. 

Upon  the  conceded  state  of  facts  existing  in  the  case 
of  Amador-Medean  v.  South  Spring  Hill,  as  heretofore 
outlined,  Judge  Sawyer,  in  deciding  in  favor  of  the 
agricultural  proprietor,  said: — 

The  only  question  is,  whether,  under  the  Revised 
Statutes,  a  party  discovering  and  acquiring  title  by 
patent  from  the  United  States  to  a  mineral  gold- 
bearing  vein  or  lode,  having  its  apex  within  the  land 

62  14  Stats,  at  Large,  ch.  262,  p.  251. 

63  Doe  V.  Waterloo  M.  Co.,  54  Fed.  935,  941;  Montana  0.  P.  Co.  v. 
Boston  &  Montana  C.  &  C.  Co.,  27  Mont.  288,  70  Pac.  1114,  1124; 
S.  C,  on  rehearing,  27  Mont.  536,  71  Pac.  1005. 


1457  VEIN  DIPPING  BENEATH  PRIOR  GRANT.  §  612 

purchased,  is  entitlod  to  follow  the  vein  or  lode 
down  on  its  dip,  across  the  boundaries  of  his  own 
lands,  into  the  agricultural  lands  of  an  adjoining 
proprietor  who  has  the  elder  title?  In  my  judg- 
ment, he  clearly  has  not By  the  entry  and 

payment  of  Hammack,  there  being  no  known  mine 
on  the  land,  the  entire  interest  to  the  center  of  the 
earth  vested  in  him,  and  there  was  nothing  left  in 
the  United  States  for  a  subsequent  grant  to  other 
parties  to  oi^erate  upon.  The  only  exceptions  in 
the  patents  relate  to  easements  and  other  prior 
rights  already  vested  in  other  parties  before  the 
date  of  the  entry,  as  was  held  in  the  case  of  Pacific 
Milling  &  Mining  Co,  v.  Spargo.^*  No  other  excep- 
tions are  authorized  by  the  statute  to  be  inserted, 
and  exceptions  not  so  authorized,  if  inserted,  would 
be  void.  Section  twenty-three  hundred  and  twenty- 
two  of  the  Revised  Statutes,  relied  on  by  defendant, 
does  not  authorize  any  such  exception,  and  it  only 
applies,  at  most,  to  public  lands  and  to  rights  ac- 
quired to  such  lands  before  other  parties  acquire 
interests  therein.  It  certainly  does  not  apply  to 
agricultural  lands  disposed  of  years,  perhaps  half 
a  centurj^,  before  by  the  government,  and  before  any 
easement  or  other  right  has  become  vested  in  other 
parties.  The  United  States  can  undoubtedly  grant 
easements  and  other  limited  rights  in  any  portion 
of  the  public  lands,  and  subsequent  purchasers  must 
take  them  burdened  with  such  easements  or  other 
rights;  but  when  it  has  once  disposed  of  its  entire 
estate  in  the  lands  to  one  party,  it  can  afterward  no 
more  burden  it  with  other  rights  than  any  other 
proprietor  of  lands.  The  defendant  acquired  no 
rights  in  the  premises  in  question  under  the  section 
cited,  or  any  other  statute  of  the  United  States 
brought  to  the  notice  of  the  court,  as  against  the 
prior  grant  under  which  plaintiff  holds." 

54  8  Saw.  645,  16  Fed.  348,  16  Morr.  Min.  Rep.  75. 

55  This  case  was  appealed  to  the  supreme  court  of  the  United  States. 
When  it  came  on  for  argument,  the  attorney  for  the  South  Spring  Hill 

Lindley  on  M. — 92 


§  612   OBSTACLES  INTERRUPTING  EXTRALATERAL  RIGHT.   1458 

With  all  deference  to  the  views  of  the  distinguished 
jurist,  we  think  that  his  opinion  begs  the  question. 

We  may  readily  concede  all  that  is  said  by  him  with 
reference  to  the  subject  of  easements.  We  have  fol- 
lowed his  views  in  this  behalf  in  a  preceding  section.^" 
But  we  have  also  announced  the  view,  based,  as  we 
think,  upon  sound  reason,  that  the  nature  of  the  estate 
in  the  vein,  created  by  a  grant  of  the  dip  or  extralateral 
right,  is  something  more  than  a  mere  easement.  It 
is  a  title  in  fee  as  to  the  vein  granted." 

If  the  segment  of  the  vein  underlying  the  Hammack 
tract  was  in  fact  granted  by  the  patent  or  by  the  certi- 
ficate of  purchase,  which  is  the  legal  equivalent  of  a 
patent,  it  must  be  conceded  that  the  subsequent  location 
of  the  apex  of  the  vein  would  not  confer  the  right  to 
enter  underneath  the  surface  of  the  agricultural  entry 
in  pursuit  of  the  vein  on  its  dip.  Whether  such  patent 
conveyed  such  underground  segment  is  to  be  deter- 
mined, not  from  the  inspection  of  the  patent  alone,  but 
from  a  consideration  of  the  state  of  the  law  as  it  ex- 
isted when  the  certificate  was  issued ;  and  this  state  of 
the  law  is  not  to  be  determined  only  from  an  examina- 
tion of  the  particular  statute  under  which  the  agri- 
cultural title  was  acquired,  but  from  a  fair  consideration 
of  the  entire  body  of  the  federal  laws  providing  for  the 
sale  and  disposal  of  the  public  lands— laws  which  are 

Co.,  plaintiff  in  error,  called  attention  to  the  fact  that  since  the  deci- 
sion in  the  circuit  court  the  control  of  both  corporations,  parties  to 
the  suit,  had  come  into  the  hands  of  the  same  persons.  Therefore, 
without  considering  or  passing  upon  the  merits  of  the  case  in  any  re- 
spect, the  appellate  tribunal  reversed  the  judgment,  and  remanded  the 
case  for  further  proceedings,  "in  conformity  to  law."  South  Spring 
Hill  G.  M.  Co.  V.  Amador-Medean  G.  M.  Co.,  145  U.  S.  300,  12  Sup. 
Ct.  Rep.   921,   36  L.   ed.   712. 

56  Ante,  §  531. 

57  Ante,  §  568,  p.  1259. 


1459  VEIN  DIPPING  BENEATH  PRIOR   GRANT.  §  612 

essentially  in  pari  materia.  A  statute  must  be  con- 
strued with  reference  to  the  whole  system  of  which  it 
forms  a  part." 

Where  enactments  separately  made  are  read  in  pari 
materia,  they  are  treated  as  having  formed  in  the 
minds  of  the  enacting  body  parts  of  a  connected 
whole,  though  considered  by  such  body  at  different 
dates  and  under  distinct  and  varied  aspects  of  the 
common  subject.  Such  a  principle  is  in  harmony 
with  the  actual  practice  of  legislative  bodies,  and  is 
essential  to  give  unity  to  the  laws,  and  connect  them 
in  a  symmetrical  system." 

We  have  heretofore  said  that  the  act  of  1866  was 
in  effect  a  proclamation  severing  veins  and  lodes  from 
the  body  of  the  public  domain;  that  it  was  the  an- 
nouncement of  a  governmental  policy  whereby  ledges 
within  the  earth  were  to  be  considered  as  distinct  en- 
tities, and  to  be  dealt  with  as  such  in  administering  the 
public-land  system. 

That  this  act  was  but  a  crystallization  of  the  local 
rules  and  customs  existing  at  the  date  of  its  passage 
has  been  abundantly  established.^"  In  construing  a 
statute,  aid  may  be  derived  from  attention  to  the  state 
of  things  as  it  appeared  to  the  legislature  when  the 
statute  was  enacted." 

What  was  this  ' '  state  of  things ' '  existing  in  the  min- 
ing regions  when  congress  first  recognized  these  local 
rules  and  perpetuated  the  extralateral  or  dip  right  as 

68  Sutherland  on  Statutory  Construction,  §  284.  See,  also,  Lavag- 
nino  V.  Uhlig,  26  Utah,  1,  99  Am.  St.  Bep.  808,  71  Pac.  1046,  1048, 
22  Morr.  Min.  Kep.  610. 

69  Sutherland   on   Statutory   Construction,  §  288. 

60  Ante,  §  56. 

61  United  States  v.  Union  Pac.  R.  R.,  91  U.  S.  72,  79,  23  L.  ed.  224; 
Piatt  V.  Union  Pac.  R.  R.,  99  U.  S.  48,  59,  25  L.  ed.  424;  Smith  v. 
Townsend,  148  U.  S.  490,  13  Sup.  Ct.  Rep.  634,  37  L.  ed.  533;  Johnston 
V.  Morris,  72  Fed,  890,  896,  19  C.  C.  A.  229. 


§  612      OBSTACLES    INTERRUPTING    EXTRALATERAL    RIGHT.        1460 

it  was  enjoyed  under  them?  Judge  W.  H.  Beatty, 
speaking  for  the  supreme  court  of  the  state  of  Nevada, 
in  an  opinion  rendered  in  July,  1866,  sheds  some  light 
upon  the  subject: — 

Whilst  we  depart  from  the  rules  of  the  common 
law  so  far  as  to  let  the  miner  follow  his  lode  of 
quartz  wheresoever  it  may  go,  even  though  it  runs 
under  public  land  which  was  in  the  occupancy  of  an- 
other before  the  mine  was  located,  on  the  other  hand 
the  occupier  of  the  surface  is  equally  entitled  to  pro- 
tection in  the  use  of  that  surface,  if  a  miner  having 
a  senior  location  should,  in  course  of  time,  be  found 
to  run  under  his  improvements.  The  doctrine  of  the 
common  law,  that  he  who  has  a  right  to  the  surface 
of  any  portion  of  the  earth  has  also  the  right  to  all 
beneath  it  and  above  that  surface,  has  but  a  limited 
application  to  the  rights  of  miners  and  others  using 
the  public  lands  of  this  state.  Necessity  has  com- 
pelled a  great  modification  of  that  doctrine.  The  de- 
parture from  those  old  and  established  doctrines  of 
the  law  will,  doubtless,  lead  to  many  complications. 
To  adhere  to  common-law  rules  on  this  subject  is 
simply  impossible.  To  attempt  to  carry  out  com- 
mon-law doctrines  on  this  point  would  either  give 
all  the  houses  in  Virginia  City  to  the  mining  corpora- 
tions, or  else  all  the  most  valuable  mines  to  those 
occupying  the  houses.  The  well-established  custom 
of  miners,  to  locate  veins  of  mineral,  claiming  to 
follow  them  with  all  their  dips,  spurs,  and  angles^ 
without  reference  to  the  occupancy  of  the  surface, 
has  compelled  a  departure  from  the  common-law 
rules.®^ 

If  it  be  true,  and  as  we  have  shown  in  the  preceding 
sections  the  courts  have  so  decided,  that  the  senior 
location  may  be  invaded  by  the  junior  apex  proprietor 
pursuing  his  vein  on  its  downward  course  outside  of  his 

82  Bullion  M.  Co.  v.  Croesus  G.  &  S.  M.  Co.,  2  Nev.  168,  178,  90 
Am.  De<k  526,  5  Morr.  Min.  Rep.  254. 


1461  VEIN  DIPPING  BENEATH  PRIOR  GRANT.  §  612 

lateral  boundaries,  wliy  should  not  the  same  rule  be 
applied  to  senior  agricultural  grants?  There  is  no 
particular  magic  in  the  position  a  given  statute  occu- 
pies in  a  cognate  system. 

As  is  said  by  Mr.  Sutherland  in  his  work  on  Statu- 
tory Construction,"  it  is  to  lie  inferred  that  a  code  of 
statutes  relating  to  one  subject  was  governed  by  one 
spirit  and  policy,  and  was  intended  to  be  consistent 
and  harmonious  in  its  several  parts  and  provisions. 
Title  thirty-two  of  the  Revised  Statutes  of  the  United 
States  embraces  all  legislation  of  a  general  and  per- 
manent character  on  the  subject  of  public  lands  which 
was  in  force  on  the  first  day  of  December,  1873.  It 
is  subdivided  into  chapters,  each  dealing  with  a  partic- 
ular branch  of  the  sj^stem,  including  the  method  of 
acquiring  title  to  agricultural,  mineral,  townsite  and 
other  lands.  Subsequent  legislation  on  the  same  sub- 
ject becomes  a  part  and  parcel  of  the  system.  It  would 
be  impossible  to  administer  and  execute  these  public 
land  laws  on  intelligent  or  symmetrical  lines  unless  the 
entire  system  is  considered,  and  each  part  is  construed 
in  the  light  and  according  to  the  spirit  and  intent  of  the 
whole. 

In  comparing  the  federal  land  system  and  the  gov- 
ernmental theories  upon  which  it  is  based  with  those 
of  other  countries,  we  have  noted  ^*  that,  unlike  the 
regalian  system  prevalent  in  England,  France,  Spain, 
and  Mexico,  a  grant  or  conveyance  by  the  United 
States  carries  all  the  minerals,  unless  reserved  ex- 
pressly or  by  implication  in  the  law  or  instrument  pur- 
porting to  pass  the  title.  The  doctrine  for  which  we 
are  now  contending  is  in  harmony  with  this  rule.  We 
simply  affirm  that  lodes  or  veins  having  their  apices 

83  §  288,  and  cases  cited  in  note  5. 
«4  Ante,  §  80,  p.  120. 


§  613      OBSTACLES    INTERRUPTING    EXTRALATERAL    RIGHT.        1462 

outside  of  the  agricultural  grant  are,  to  the  extent  that 
such  lodes  or  veins  on  their  downward  course  underlie 
it,  reserved  by  law  out  of  such  grant.  Nor  does  this 
doctrine  militate  against  the  well-established  rule  of 
law  that  the  patent  is  conclusive  evidence  of  the  charac- 
ter of  the  land.  The  land  covered  by  an  agricultural 
patent  is  conclusively  deemed  to  be  agricultural,  but 
this  does  not  necessarily  imply  that  a  lode  under  its 
surface,  apexing  outside  of  it,  cannot  be  reserved  with- 
out impeaching  the  patent  and  changing  the  legal  char- 
acter of  the  land.  The  two  classes  of  grants  may  exist 
without  conflicting,  in  a  legal  sense.  As  a  matter  of 
course,  the  agricultural  grantee  may  insist  upon  the 
doctrine  of  lateral  and  subjacent  support,  as  this  is 
necessarily  involved  in  the  severance  of  the  title  to  the 
underlying  vein,  and  is  one  of  the  essential  concomi- 
tants of  the  extralateral  right. 

The  only  case  coming  under  our  observation,  other 
than  the  one  passed  upon  by  Judge  Sawyer  heretofore 
commented  on,  where  this  question  was  considered,  was 
that  of  Wedekind  v.  Bell,  decided  by  Judge  Talbot  at 
nisi  pritis—a  case  quite  fully  discussed  in  a  preceding 
section.^^  The  judge  there  held  that  a  junior  locator^ 
with  the  apex  of  the  vein  outside  of  the  prior  patented 
agricultural  land,  might  follow  it  underneath  such  land^ 
declining  to  adopt  the  views  of  Judge  Sawyer  in  the 
Amador-Medean  case. 

§  613.  Same— Other  classes  of  grants.— It  does  not 
militate  against  the  doctrine  announced  in  the  preced- 
ing section  to  admit  that  grants  of  all  classes,  the  titles 
to  which  became  vested  prior  to  the  passage  of  the  act 
of  1866,  form  exceptions  to  the  rule,  for  the  simple 
reason  that  according  to  the  state  of  the  law  thereto- 

66  Ante,  §  596. 


1463  UNION  OF  VEINS  ON  DIP.  §  61-i 

fore  existing  there  was  no  recognized  legislative  decla- 
ration authorizing  or  sanctioning  such  a  reservation. 
In  the  case  of  Mexican  grants,  we  will  concede  that  the 
rule  does  not  apply,  for  two  reasons:  The  titles  to 
them  originated  prior  to  the  enactment  of  any  congres- 
sional laws,  and  their  subsequent  conveyance  by  the 
government  to  the  confirmees  was  in  fulfillment  of 
treaty  obligations.  In  addition  to  this,  acts  of  con- 
gress providing  for  the  settlement  of  private  land 
claims  are  special  in  their  nature,  and  form  no  part 
of  the  public  land  system.  With  reference  to  railroad 
grants  and  grants  for  educational  purposes,  the  state 
of  the  law  at  the  time  the  grants  take  effect,  as  to  par- 
ticular tracts,  will  control  their  administration.^^ 

It  may  be  said  that  this  doctrine  is  radical,  and  that 
its  application  will  carry  us  beyond  the  limits  of  judi- 
cial conservatism.  This  is  of  no  moment  if  the  rule  be. 
founded  in  logic  and  reason.  It  is  upheld  by  many 
able  and  earnest  men  in  the  active  walks  of  profes- 
sional life,  who  are  impressed  with  the  conviction  that 
the  established  policy  of  the  federal  government,  tradi- 
tional and  legislative,  on  the  subject  of  the  dip  or  extra- 
lateral  right  has  released  us  from  the  thraldom  of  the 
common  law. 

§  614.  Union  of  veins  on  the  dip. — The  last  clause 
of  section  twenty-three  hundred  and  thirty-six  of  the 
Revised  Statutes  provides  that  ''where  two  or  more 
veins  unite,  the  oldest  or  prior  location  shall  take  the 
vein  below  the  point  of  union,  including  the  space  of 
intersection."  This,  of  course,  refers  to  a  union  on 
the  dip.*^    We  have  heretofore  fully  considered  the  sub- 

68  Ante,  §§  141-159. 

67  Lee  V.  Stahl,  13  Colo.  174,  22  Pac.  436,  438,  16  Morr.  Min.  Eep. 
152. 


§  614   OBSTACLES  INTERRUPTING  EXTRALATERAL  RIGHT.   1464 

ject  of  cross-lodes  sucli  as  intersect  or  cross  on  the 
strike — a  class  of  cases  provided  for  in  the  first  clause 
of  the  section  of  the  Revised  Statutes  referred  to/' 

The  law  defining  the  rights  of  the  parties  in  cases  of 
veins  uniting  on  the  downward  course  seems  to  be  clear 
and  unambiguous.  The  object  of  the  statute  was  to 
supplement  the  provisions  of  section  twenty-three  hun- 
dred and  twenty-two  and  to  prescribe  rules  under 
which  different  locations  by  different  proprietors 
should  be  held,  and  to  determine  the  rights  of  such  pro- 
prietors in  case  of  intersecting  veins.^**  When  such  an 
intersection  is  established,  priority  of  location  governs. 
The  senior  title  takes  the  entire  united  vein  below  the 
line  of  junction.^" 

The  problem  is  so  simple  that  diagrams  are  hardly 
required  to  exhibit  the  practical  application  of  the  law. 
But  even  the  statement  of  plain  propositions  may  often 
be  emphasized  by  apt  illustration.  The  case  of  the 
Little  Josephine  Mining  Co.  v.  Fullerton,  considered 
by  the  circuit  court  of  appeals  for  the  eighth  circuit,'' 
affords  us  such  an  excellent  opportunity  of  represent- 
ing actual  conditions  to  which  the  law  has  been  applied 
that  we  consider  it  not  altogether  inappropriate  to 
illustrate  it. 

68  Ante,  §§  557-560. 

69  Stinchfield  v.  Gillis,  107  Cal.  84,  89,  40  Pac.  98,  99. 

70  Champion  M.  Co.  v.  Cons.  Wyoming  M.  Co.,  75  Cal.  78,  16  Pac. 
513,  514,  16  Morr.  Min.  Rep.  145;  Cons.  Wyoming  M.  Co.  v.  Champion 
M.  Co.,  63  Fed.  540,  546,  18  Morr.  Min.  Rep.  113;  Stinchfield  v.  Gillis, 
96  Cal.  33,  30  Pac.  839,  840,  17  Morr.  Min.  Rep.  497;  Little  Josephine 
M.  Co.  V.  Fullerton,  58  Fed.  521,  523,  7  C.  C.  A.  340;  Roxanna  G.  M. 
Co.  V.  Cone,  100  Fed.  168,  171;  Hickey  v.  Anaconda  Copper  Co.,  33 
Mont.  46,  81  Pac.   806. 

71  58  Fed.  521,  7  C.  C.  A.  340. 


1465 


ONION  OF  VEINS  ON  DIP. 


614 


Figure  101  shows,  approximately,  the  relative  posi- 
tion on  the  surface  of  the  three  locations  involved,  the 
veins  dipping  respec- 
tively in  the  direction 
of  the  arrows. 


Figure  102  is  a 
cross-section,  exhibit- 
ing the  junction  of 
veins  underneath  the 
surface. 

As  to  the  priorities, 
the  Slaughterhouse 
was  located  in  1866 
and  patented  in  1871. 
The  Fagan  was  orig- 
inally located  in  1876, 
and  an  amended  loca- 
tion   was     made    in 


\ 


I 


L/TTLE  kJOSEI^W/VE: 


Figure  101. 


1887.     The  Little  Josephine's  rights  dated  from  1877. 
As  the  Slaughterhouse  and  Little  Josephine  were  both 


—    'f^ZFeet 


<Faojr^^i-  _ 


Figure  102. 

held  by  the  Little  Josephine  company,  the  court  did 
not  undertake  to  determine  the  priorities  between  the 


§  615      OBSTACLES    nSTTERBUPTING    EXTRALATERAL    RIGHT.        1466 

Fagan  and  the  Little  Josephine.  The  Slaughterhouse, 
being  the  older  location,  took  the  entire  vein  below  the 
junctions.  With  priorities  in  favor  of  the  Fagan,  the 
right  of  lateral  pursuit  of  the  Slaughterhouse  would 
be  interrupted  at  the  point  of  junction.  It  would  ab- 
solutely cease  if  the  Slaughterhouse  vein  did  not  cross 
and  continue  below  the  line  of  junction.  As  it  was, 
the  extralateral  right  of  the  Fagan  was  lost  at  this 
point  or  line,  unless  it  demonstrated  that  the  vein 
passed  through  the  Slaughterhouse  and  continued 
downward  in  the  direction  of  the  dotted  lines.  This 
fact  was,  as  we  are  advised,  ultimately  established,  re- 
sulting in  giving  the  ore  through  the  space  of  intersec- 
tion from  wall  to  wall  to  the  Little  Josephine  company, 
and  to  the  Fagan  the  right  of  way  through  the  space 
of  lode  intersection."  These  diagrams  illustrate  the 
rule  more  forcibly  than  pages  of  descriptive  geology. 

The  embarrassment  surrounding  this  class  of  cases 
arises  from  the  difficulty  of  establishing  the  facts.  If 
the  union  of  the  veins  occurs  at  a  point  underneath  the 
surface  of  neither  of  the  contending  parties,  there  are 
no  presumptions  indulged  in.  The  burden  of  proof 
would  naturally  rest  with  the  party  having  the  affirma- 
tive of  the  issue. 

§  615.  Identity  and  continuity  of  veins  involved  in 
the  exercise  of  the  extralateral  right. — Whenever  the 
extralateral  right  of  an  apex  proprietor  is  challenged, 
he  is  called  upon  to  establish, — 

(1)  The  existence  of  an  apex  within  his  boundaries, 
to  the  extent  necessary  to  cover  the  disputed  segment 
of  the  vein ; " 

72  See  charge  to  jury  quoted  in  Butte  &  Boston  M.  Co.  v.  Societe 
Anonyme,  23  Mont.  177,  75  Am.  St.  Rep.  505,  58  Pae.  Ill,  116,  ap- 
proved with  slight  modification  by  the  supreme  court  of  Montana. 

73  As  to  what  constitutes  an  apex,  see  ante,  §  309.     Also  comments 


14G7  IDENTITY  AND  CONTINUITY  OF  VEINS.  §  615 

(2)  The  identity  and  continuity  of  the  vein  from  its 
top,  or  apex,  within  his  own  boundaries  to  the  point  in 
dispute. 

As  to  the  length  of  apex  required  to  be  shown,  it  is 
not  necessary  that  it  should  be  physically  demonstrated 
that  the  vein  passes  through  both,  or  even  either,  of 
the  end-lines,  so  long  as  it  appears  that  the  course  of 
the  vein  through  the  location  is  not  such  as  prevents 
the  exercise  of  the  extralateral  right.  It  will  be  suffi- 
cient if  apex  is  shown  to  the  extent  that  is  necessary  to 
cover  the  underground  portion  of  the  vein  in  dispute 
within  the  end-line  bounding  planes.  If  a  lode  pro- 
prietor with  a  location  fifteen  hundred  feet  long  follows 
the  vein  on  its  dip  underneath  the  surface  of  a  parallel 
location  seven  hundred  and  fifty  feet  in  length,  apex 
need  only  be  shown  to  the  extent  of  the  seven  hundred 
and  fifty  feet,  or  to  the  extent  that  the  claims  parallel 
each  other.^* 

Where  a  vein  passes  through  an  end-line  of  a  claim 
and  extends  for  a  considerable  distance  in  a  general 
direction  parallel  to  the  side-lines  of  the  location,  there 
being  no  evidence  to  show  that  the  vein  departs  through 
a  side-line,  the  presumption  will  be  indulged  that  the 
vein  continues  regularly  on  its  course." 

Where  a  vein  was  shown  to  abruptly  terminate 
against  a  "crossing,"  near  the  west  end  of  the  claim, 
but  from  the  crossing  easterly  pursued  a  uniform 

of  United  States  supreme  court  in  Mammoth  v.  Grand  Central  M.  Co., 
213  U.  S.  72,  29  Sup.  Ct.  Eep.  413,  53  L.  ed.  702;  Lawson  v.  U.  S. 
Min.  Co.,  207  U.  S.  1,  8,  28  Sup.  Ct.  Rep.  15,  52  L.  ed.  65. 

74  Hyman  v.  Wheeler,  29  Fed.  347,  355,  15  Morr.  Min.  Eep.  519. 

75  Argonaut  Cons.  M.  Co.  v.  Turner,  23  Colo.  400,  58  Am.  St.  Rep. 
245,  48  Pac.  685,  686,  cited  in  Catron  v.  Old,  23  Colo.  433,  58  Am. 
St.  Rep.  256,  48  Pac.  686,  687,  18  Morr.  Min.  Rep.  569.  See  Water- 
loo V.  Doe,  82  Fed.  45,  55,  27  C.  C.  A.  50,  19  Morr.  Min.  Eep.  I; 
Wakeman  v.  Norton,  24  Colo.   192,  49   Pac.   283,  284. 


§  615      OBSTACLES    ESTTERRUPTINQ    EXTBALATEBAL    BIGHT.        1468 

course  for  a  considerable  distance  practically  parallel 
to  the  side-lines  to  a  point  within  one  hundred  feet  of 
the  east  end-line,  it  was  said  that  the  presumption  was 
that  the  vein  crossed  the  east  end-line/® 

While  an  apex  proprietor  pursuing  his  vein  on  its 
dip  underneath  adjoining  lands  is  called  upon  to  over- 
come certain  legal  presumptions  flowing  from  surface 
ownership/^  so  far  as  the  conditions  within  his  own 
boundaries  are  concerned  he  is  entitled  to  such  pre- 
sumptions of  fact  as  rationally  flow  from  other  facts 
satisfactorily  established. 

The  supreme  court  of  Colorado  has  gone  so  far  as  to 
announce  that  when  one  has  discovered  a  lode  upon 

76  Carson  City  G.  &  S.  M.  Co.  v.  North  Star  M.  Co.,  73  Fed.  597, 
602;  affirmed  on  appeal,  83  Fed.  658,  28  C.  C.  A.  333,  19  Morr.  Min. 
Rep.  118. 

77  Leadville  M.  Co.  v.  Fitzgerald,  4  Morr.  Min.  Rep.  380,  Fed.  Cas. 
No.  8158;  Iron  S.  M.  Co.  v.  CampbeU,  17  Colo.  267,  29  Pac.  513,  515; 
Cheesman  v.  Shreeve,  37  Fed.  36,  37,  16  Morr.  Min.  Rep.  79;  Cheesman 
V.  Hart,  42  Fed.  98,  99,  12  Morr.  Min.  Rep.  263;  Jones  v.  Prospect 
Mt.  T.  Co.,  21  Nev.  339,  31  Pac.  642,  644;  Bell  v.  Skillicorn,  6  N.  M. 
399,  28  Pac.  768,  771;  Wakeman  v.  Norton,  24  Colo.  192,  49  Pac.  283; 
Lincoln  Lucky  &  Lee  M..  Co.  v.  Hendry,  9  N.  M.  149,  50  Pac.  330,  331; 
Parrot  S.  &  C.  Co.  v.  Heinze,  25  Mont.  139,  87  Am.  St.  Rep.  386,  64 
Pac.  327,  329,  53  L.  R.  A.  491,  21  Morr.  Min.  Rep.  232;  MaJoney  v. 
King,  25  Mont.  188,  64  Pac.  351;  Calhoun  G.  M.  Co.  v.  Ajax  G.  M. 
Co.,  27  Colo.  1,  83  Am.  St.  Rep.  17,  59  Pac.  607,  615,  50  L.  R.  A.  209, 
20  Morr.  Min.  Rep.  192;  State  v.  District  Court,  25  Mont.  572,  65  Pac. 
1020,  1023;  St.  Louis  M.  &  M.  Co.  v.  Montana  M.  Co.,  113  Fed.  900, 
64  L.  R.  A.  207,  51  C.  C.  A.  530,  22  Morr.  Min.  Rep.  127;  Empire 
State-Idaho  M.  &  D.  Co.  v.  Bunker  Hill  &  Sullivan  M.  Co.,  114  Fed. 
417,  52  C.  C.  A.  219,  22  Morr.  Min.  Rep.  104;  Maloney  v.  King,  27 
Mont.  428,  71  Pac.  469,  470;  Montana  Ore  Purchasing  Co.  v.  Boston 
&  Montana  Cons.  C.  &  S.  M.  Co.,  27  Mont.  536,  71  Pac.  1005,  1007; 
State  V.  District  Court,  28  Mont.  528,  73  Pac.  230,  234;  Heinze  v. 
Boston  &  Montana  C.  &  S.  M.  Co.,  30  Mont.  484,  77  Pac.  421,  422; 
Grand  Central  M.  Co.  v.  Mammoth  M.  Co.,  29  Utah,  490,  83  Pac.  648, 
667;  Boston  &  Montana  C.  C.  &  S.  M.  Co.  v.  Montana  Ore  Purchasing 
Co.,  188  U.  S.  632,  638,  23  Sup.  Ct.  Rep.  440,  47  L.  ed.  626;  Lawson 
V,  U.  S.  Min.  Co.,  207  U.  S.  1,  8,  28  Sup.  Ct.  Rep.  15,  52  L.  ed.  65. 


1469  IDENTITY  AND  CONTINUITY  OF  VEINS.  §  615 

the  unappropriated  public  domain  and  has  within  the 
proper  time,  and  in  good  faith,  performed  all  of  the 
subsequent  acts  essential  to  a  valid  location  as  pro- 
vided by  law,  he  is  entitled  to  the  presumption  that  his 
lode  extends  throughout  the  full  length  of  the  claim," 
it  having  been  established  that  the  apex  existed  within 
the  location,  and  its  course  shown  to  a  slight  extent/' 

Many  patents  are  issued  which  include  a  description 
of  the  lode  line  as  surveyed,  with  reference  to  which 
the  side-lines  are  constructed,  and  it  is  quite  common 
for  the  official  plat  to  show  this  line.  Strictly  speak- 
ing, in  the  nature  of  things,  this  is  but  the  representa- 
tion of  the  hypothetical  course  of  the  lode. 

It  is  not  for  the  government  to  show  that  the  lode 
proceeds  in  a  straight  line.  It  must  be  presumed  that 
such  is  its  course  and  that  it  occupies  a  position  in  the 
center  of  the  diagram  filed,  unless  evidence  be  sub- 
mitted showing  a  different  direction.*" 

The  court  cannot  presume  that  the  land  depart- 
ment determined  the  course  of  the  lode.  The  mark- 
ing of  an  ideal  line  across  the  survey  and  diagram 
did  not  have  the  effect  of  putting  a  lode  into  the 
ground  if  there  was  no  vein  there.*^ 

One  whose  territory  is  invaded  has  a  right  to  show 
the  actual  course  of  the  lode,  independently  of  the  lode- 
line  established  by  the  surveyor.     The  course  of  a  vein 

78  Armstrong  v.  Lower,  6  Colo.  393,  399,  15  Morr.  Min.  Eep.  631. 

79  Id.,  on  rehearing,  6  Colo.  581,  586,  15  Morr.  Min.  Rep.  458; 
Wakeman  v.  Norton,  24  Colo.  192,  49  Pac.  283,  286;  San  Miguel  Cons. 
G.  M.  Co.  V.  Bonner,  33  Colo.  207,  79  Pae.  1025,  1027. 

80  Bimetallic  M.  Co.,   15  L.  D.  309;   Instructions,  38  L.  D.  40. 

81  Cons.  Wyoming  G.  M.  Co.  v.  Champion  M.  Co.,  63  Fed.  540,  552, 
18  Morr.  Min.  Rep.  113;  Grand  Central  M.  Co.  v.  Mammoth  M.  Co., 
29  Utah,  490,  83  Pac.  648,  668;  Stevens  v.  Gill,  Fed.  Cas.  No.  13,398, 
1  Morr.  Min.  Rep.  576;  Colling  v.  Bailey  (Colo.  App.),  125  Pac.  543, 
548. 


§  615   OBSTACLES  INTERRUPTING  EXTRALATERAL  RIGHT.   1470 

tlirougli  a  location  is  not  the  subject  of  adverse  claim,®* 
and  outside  claimants  are  not  concluded,  in  this  respect 
at  least,  by  the  issuance  of  the  patent.^^ 

In  following  his  vein  downward  the  apex  proprietor 
must  keep  within  it.  He  cannot  crosscut  underneath 
another's  surface  to  reach  the  vein.®* 

The  legal  identity  or  continuity  of  a  vein  on  its  down- 
ward course,  as  well  as  on  its  longitudinal  course  un- 
derneath the  surface  of  adjoining  lands,  presents  at 
times  the  most  serious  questions  encountered  in  the- 
administration  of  the  mining  law.  It  is  impossible  to 
prescribe  any  definite  rule  as  to  what  degree  of  con- 
tinuity or  identity  in  a  legal  sense  the  miner  must 
establish  when  he  invades  property  adjoining  the  loca- 
tion containing  the  apex  of  the  vein.  Each  case  pre- 
sents its  own  peculiar  features.  Reports  of  adjudi- 
cated cases  rarely  present  general  discussions  of  this- 
feature  of  the  mining  law,  nor  are  the  facts  usually 
stated  with  such  detail  as  to  enable  the  practitioner 
to  utilize  the  case  as  a  precedent.  The  infinite  variety 
of  structural  conditions  encountered  in  the  practical 
operation  of  mines  renders  it  highly  improbable  that 
a  case  in  one  locality  can  be  safely  relied  upon  as  a 

82  Beik  V.  Niekerson,  29  L.  D.  662. 

83  See,  also,  Stevens  &  Leiter  v.  Williams,  1  McCrary,  480,  Fed.  Cas- 
No.   13,413,  1  Morr.  Min.  Rep.  566. 

The  case  of  Work  M.  Co.  v.  Doctor  Jack  Pot  M.  Co.,  194  Fed.  620,. 
decided  by  the  circuit  court  of  appeals  of  the  eighth  circuit,  seems,  to 
some  extent  at  least,  to  be  opposed  to  the  doctrine  of  the  text,  and 
to  sanction  the  rule  that  the  patent  when  issued  is  conclusive  evidence 
that  the  vein  exists  in  the  discovery  cut  or  shaft  and  passes  through:, 
both  end-lines,  in  the  absence  of  a  showing  that  the  vein  passes  through- 
the  side-lines.  We  shall  have  occasion  to  discuss  the  case  in  a  subse- 
quent section  when  dealing  with  the  burden  of  proof  in  trespass  cases. 

84  St.  Louis  M.  &  M.  Co.  v.  Montana  M.  Co.,  113  Fed.  900,  902,  51 
C.  C.  A.  530;  S.  C,  on  appeal.  194  U.  S.  235,  237,  24  Sup.  Ct.  R«p. 
654,  48  L.  ed.  953;  ante,  §490a,  Patten  v.  Conglomerate  M.  Co.,  35^ 
L.  ed.  617. 


1471  IDENTITY  AND  CONTINUITY  OF  VEINS.  §  615 

precedent  in  a  case  arising  in  anotlier  place.  The  best 
that  can  be  done  in  discussing  this  branch  of  the  law 
is  to  present  such  cases  as  seem  to  clearly  enunciate 
principles  which  may  be  considered  of  general  appli- 
cation. 

Of  all  the  decisions  of  the  courts  which  deal  with  the 
subject  under  consideration,  that  rendered  by  the  su- 
preme court  of  Montana  in  Butte  and  Boston  Mining 
Company  v,  Societe  Anonyme  des  Mines  de  Lexington, 
speaking  through  Justice  Ilunt,^^  is  the  most  instruc- 
tive and  valuable.  We  may  select  with  advantage  from 
the  opinion  of  the  court  such  expression  of  its  views  as 
seems  to  us  of  practical  utility,  commending  the  entire 
opinion  as  an  exceedingly  able  one,  and  one  reflecting 
much  light  on  a  difficult  subject.     Said  the  court: — 

The  right  of  an  apex  proprietor  to  pursue  a  vein 
passing  from  his  side-lines  is  dependent  upon 
whether  or  not  as  a  fact  the  part  or  mineral  body  of 
vein  matter  which  lies  outside  of  the  perpendicular 
of  the  side-lines  of  his  surface  claim  is  so  preserved 
in  its  identity  with  the  lode  inside  that  it  is  part  of 
the  same  vein,  the  apex  of  which  belongs  to  the  sur- 
face owner 

On  principle  the  identity  of  the  apex  of  a  vein  with 
its  spurs  or  extensions  must  be  the  crucial  test  by 
which  are  to  be  fixed  the  proprietary  rights  to  that 
vein  and  the  mineral  therein 

The  pursuit  of  the  vein  on  its  dip  being,  then,  the 
right  to  be  guarded,  the  identity  of  the  vein  pursued 
must  be  proven  to  make  the  right  availing  where  it 
is  contended  the  vein,  after  passing  beyond  the  ver- 
tical planes  drawn  through  the  side-lines  of  the  sur- 
face boundaries  of  the  location  in  which  rests  the 
apex,  penetrates  soil  the  surface  of  which  is  em- 
braced within  another  location.  Identity  must  al- 
ways  exist.     Were  there   any   departure  from  this 

86  23  Mont.  177,  75  Am.  St.  Rep.  505,  58  Pac.  Ill,  113. 


§  615      OBSTACLES    INTERRUPTING    EXTRALATERAL    RIGHT.        1472 

rule  the  miner  miglit  secure  the  benefit  of  more  than 
he  discovered,  which  was  never  contemplated  by  the 
law.     Identity  in  mineral  deposit  should    have    no 
significance  not  usual  to  identity  of  many  other  ma- 
terial things.     It  means  the  same  thing  or  the  same 
vein.     It  may  be  said  to  include  a  vein  that  is  inces- 
sant.    But  a  vein  that  is  incessant  or  identical  in 
its  parts  is  not  necessarily  a  vein  which  is  con- 
tinuous in  the  sense  that  the  continuity  or  union 
of  its  parts  is  absolute  and  uninterrupted.     In  other 
words,  though  a  continuity  of  vein  does  not  pre- 
clude identity  of  vein,  yet  identity  does  not  neces- 
sarily include  continuity  in  the  exact  sense  just  re- 
ferred to.     "Law  of  continuity,"   says  Webster's 
dictionary,  ''the  principle  that  nothing  passes  from 
one  state  to  another  without  passing  through  all  the 
intermediate  states."     Speaking  exactly  by  this  defi- 
nition, it  would  often  be  very  difficult,  if  not  impos- 
sible, for  the  challenged  proprietor  of  a  mineral  vein 
to  convince  a  jury  of  the  continuity  of  the  vein  from 
one  part  to  another,  for  there  might  not  be  continuity 
by  actual  contact  of  the  parts  or  contiguity  which 
the    precise    word   may    literally  mean  must  exist. 
Were  such  a  rule  inexorable  a  failure  of  proof  would 
not  infrequently  be  brought  about  by  the  inability 
of  the  miner  to  prove  continuity  without  transmis- 
sion through  intermediate  states.     The  miner,  there- 
fore, might  fall  short  of  that  exact  measure  of  evi- 
dence required  to  establish  a  continuity  of  vein  which 
excludes  interruption  between  one  and  another  part 
of  the  identical  vein,  and,  judged  by  too  closely  in- 
terpreted significations  the  continuity  would  be  lost ; 
yet  if  he  prove  the  identity  of  his  vein  by  some  in- 
cessant feature,  in  our  judgment,  the  right  to  pur- 
sue the  lode  on  its  dip  is  his,  and  there  should  but 
remain  the  necessity  of  going  to  the  surface  limits 
to  accurately  adjudicate  the  lines  defining  the  right 

to  the  vein  so  identified 

In  this  discussion,  however,  we  do  not  mean  to  ex- 
clude the  need  of  continuity  sufficient   to   preserve 


1473  IDENTITY  AND  CONTINUITY  OF  VEINS.  §  G15 

identity.  The  application  of  the  rule  of  identity  of 
vein  should  always  be  made  so  as  to  require  the 
miner  to  trace  his  lode  continuously  if  he  depart  be- 
yond his  extended  side-lines 

The  court  quotes  with  approval  the  charge  of  Judge 
Hallett  in  Iron  Silver  Mining  Company  v.  Cheesman, 
upheld  by  the  supreme  court  of  the  United  States,^^  and 
the  following  from  the  opinion  of  the  latter  court  in 
that  case : — 

Certainly  the  lode  or  vein  must  be  continuous  in 
the  sense  that  it  can  be  traced  through  the  surround- 
ing rocks,  though  slight  interruption  of  the  mineral- 
bearing  rock  would  not  be  alone  sufficient  to  destroy 
the  identity  of  the  vein.  Nor  would  a  short  partial 
closure  of  the  fissure  have  that  effect  if  a  little  far- 
ther on  it  occurred  again  with  mineral-bearing  rock 
within  it. 

The  supreme  court  of  Montana  then  continues : — 

The  true  sense  in  which  there  must  be  a  continuity 
of  vein  is  therefore  a  qualified  one  and  not  an  un- 
qualified exact  one,  irrespective  or  independent  of 
physical  conditions  found  in  mining.  It  may  be  said 
as  a  paraphrase  of  the  decision  cited,  that  identity  is 
essential  and  the  vein  must  be  continuous,  but  its 
continuity  may  be  interrupted,  even  to  a  closure  of 
the  fissure  without  destruction  of  the  identity,  pro- 
vided the  extent  of  the  interruptions  or  closure  does 
not  prevent  the  tracing  of  the  lode  or  vein  through 
the  fissure  to  be  identical  in  its  parts  as  a  geological 
fact. 

Identity  msij,  of  course,  be  proved  by  continuous  de- 
velopment, although  this  is  not  always  practicable,  nor 
is  it  necessary.®^     It  may  be    deduced  from  observed 

86  116  U.  S.  529,  532,  6  Sup.  Ct.  Rep.  481,  29  L.  ed.  712. 

87  Daggett  V.  Yreka   M.   &  M.   Co.,   149   Cal.  357,  86   Pac.   968,  969; 
Silver  M.  Co.  v.  Fall,  6  Nev.  454,  5  Morr.  Min.  Eep.  283. 

Lindley  on  M. — 93 


§  615      OBSTACLES    INTERRUPTING    EXTRALATERAL    RIGHT.        1474 

facts  in  different  portions  of  the  mine.  At  the  same 
time  it  is  to  be  understood,  in  the  absence  of  continuous 
development  and  exposure,  the  correlated  facts  ex- 
posed should  logically  lead  to  a  conclusion  of  identity. 
Mere  conjecture  or  intelligent  guess  would  not  be  suffi- 
cient.*® The  incessant  features  of  a  given  vein  as 
exposed  in  underground  works  may  ordinarily  be  pre- 
sumed to  continue  throughout  undeveloped  sections, 
within  reasonable  limits,  unless  there  is  something  in 
the  exposed  conditions  which  negatives  such  presump- 
tion. 

The  data,  however,  upon  which  this  presumption  is 
predicated  must,  of  course,  be  physical  facts  shown  to 
exist  at  the  different  points,  which  are  to  be  correlated. 
The  existence  of  such  facts  must  be  something  more 
than  a  matter  of  mere  conjecture.  Basic  data  cannot 
be  inferred.  An  illustration  of  this  is  found  in  the 
case  of  Collins  v.  Bailey,  decided  by  the  Colorado  court 
of  appeals,**  the  facts  of  which  as  they  appeared  to  the 
court  being  illustrated  on  a  cross-section,  which  we 
reproduce  as  figure  102a. 

A  superficial  study  of  this  cross-section  leaves  the 
impression  that  the  vein  shown  in  the  shaft  in  the 
upper  tunnel  within  the  Grand  Trunk  belonging  to 
the  apex  claimant  is  a  part  of  the  same  vein  shown  in 
the  raise  in  the  lower  tunnel,  and  the  correlation  of  the 
two  exposures  by  means  of  the  dotted  line  shown  on 
the  figure  might  plausibly  be  inferred.  But  the  facts 
stated  in  the  opinion  discredited  the  fundamental 
data  on  which  the  identity  and  continuity  of  the  vein 
was  predicated  on  the  cross-section. 

88  Heinze  v.  Boston  &  Montana  M.  Co.,  30  Mont.  485,  77  Pac,  421, 
423. 

8»  (Colo.  App.),  125  Pae.  543. 


1475 


IDENTITY  AND  CONTINUITY  OF  VEINS. 


615 


In  the  first  place,  the  engineer  who  made  the  cross- 
section  indicated  the  position  of  the  vein  assumed  to 
be  in  the  shaft  in  the  upper  tunnel  from  the  testimony 


MICA     SCHIST 


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CLAIM 


5H/1Mf?0CK 
CLAIM 


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GRANITE 


HULA 
CLyRIM 


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_W._L0WEJ^TUW1EL 


Figure  102a. 

of  one  of  the  witnesses,  an  interested  party.  The 
workings  in  that  section  of  the  mine  were  filled  with 
water  and  had  not  been  seen  by  any  other  witness. 
The  position  of  the  lower  tunnel  was  two  hundred  or 
three  hundred  feet  away  from  the  illustrated  vein  ex- 
posure on  that  level,  and  it  was  forced  into  the  plane 
of  the  cross-section. 

We  do  not  intend  to  imply  that  all  forcing  of  ex- 
posures into  the  plane  of  a  cross-section  is  bad  engi- 
neering practice.  It  is  frequently  necessary  to  pursue 
it,  as  it  is  rarely  that  all  existing  exposures  which  may 


§  615      OBSTACLES    rNTTERRUPTING    EXTRALATERAL.    EIGHT.        1476 

tend  to  establish  identity  lie  in  the  same  plane.  But 
there  must  be  ample  justification  for  such  forcing. 
The  greater  the  distance  the  greater  the  possibility 
of  discrediting  the  method.  Sometimes  exaggerated 
results  favorable  to  a  given  structural  theory  are  pro- 
duced by  this  method,  which  have  a  tendency  to  seri- 
ously reflect  upon  the  good  faith  of  the  party  producing 
the  section.  It  is  much  safer  and  more  fair  to  the 
court  to  use  for  demonstration  a  series  of  cross-sec- 
tions than  to  attempt  a  forcing  process  particularly 
where  the  exposures  are  remote.  A  hypothetical 
cross-section  supplementing  the  series  as  illustration 
of  a  theory  would  not  be  objectionable.  It  would  be 
far  better  to  pursue  this  course  than  to  have  the  in- 
firmities of  the  cross-section  exposed  on  cross-examina- 
tion. 

The  vertical  distance  between  the  upper  and  lower 
exposures  in  the  case  under  consideration  was  five 
hundred  and  fifty  feet  and  six  hundred  and  fifty-seven 
feet  measured  along  the  dotted  lines  connecting  the 
claimed  exposures,  no  development  whatever  having 
been  made  within  this  distance.  The  angle  of  declina- 
tion in  the  lower  workings  was  sixty-seven  degrees ;  in 
the  upper,  sixty-five  degrees.  The  vein,  if  extended 
upward  from  the  lower  workings  on  the  angle  of 
sixty-seven  degrees,  would  not  apex  in  the  Grand 
Trunk,  but  in  the  Australian.  The  court  pointed  out 
the  uncertainty  of  the  information  upon  which  the 
cross-section  was  based,  and  held  that  the  deduction  of 
claimed  identity  and  continuity  was  the  result  of  specu- 
lation and  conjecture,  characterizing  it  as  a  "wild 
guess." 

In  other  words,  the  judgment  or  finding  of  identity 
rested  "too  largely  upon    speculation   and   too  little 


1477 


IDENTITY  AND  CONTINUITY  OF  VEINS. 


§615 


upon  legitimate  inferences  of  fact  to  be  tolerated  in  a 
juclicial  proceeding. ' '  ^° 

Tlie  court  in  the  Collins-Bailey  case,  speaking  of  the 
instruction  given  by  the  court  below,  which  was  as- 
signed in  error,  pointed  out  what  seems  to  be  a  fair 
and  reasonable  requirement  in  cases  of  this  char- 
acter : — 

The  instruction  complained  of  was  misleading,  if 
not  erroneous,  in  this  case.  It  might  have  been  al- 
lowable in  a  case  where  a  vein  had  been  opened  and 
identified  for  substantial  distances,  and  at  points  in 
close  proximity,  but  even  in  that  case  it  should 
have  been  qualified  and  amplified  so  as  to  permit  a 
finding  based  only  upon  a  state  of  facts  sufficient 
to  reasonably  justify  such  a  conclusion.  It  should 
have  denied  the  right  of  the  jury  to  guess,  speculate 
or  conjecture. 

In  regular  fissure  veins,  in  the  absence  of  faulting, 
there  is  but  little  room  for  speculation  on  the  sul)ject 
of  identity.  Where  veins  have  their  indi\adua]izing 
characteristics,  and  when 
these  are  shown  to  be  per- 
sistent by  actual  develop-^ 
ment,  their  existence  in" 
undeveloped  sections  may 
within  reasonable  limita- 
tions be  inferred  or  estab- 
lished by  correlation. 

A  few  conventional  illus- 
trations may  be    suggestive 
in  connection  with  the  dis- 
cussion of  the  question  of: 
identity  and  continuity. 

If    a   vein    "splits,"    or 
''forks,"      either      on      its 


Figure  108. 


FiGTJEE  104. 


90  Colorado    Central   Cons.   M.   Co.   v.    Turck,   50   Fed,   888,   895,   2 
C.   C.  A    67. 


§  615      OBSTACLES    INTERRUPTING    EXTRALATERAL    RIGHT.        1478 

strike,  as  shown  on  figure  103,  or  on  its  upward  course, 
as  shown  on  figure  104,  the  forks  beyond  or  above  the 
points  of  union  may  form  distinct  apices,  subject  to 
separate  location,  and  thus  constitute  separate  veins 
in  the  eyes  of  the  law. 

If  the  forking  is  downward,  as  shown  on  figure  105, 
there  is  but  one  controlling  apex  for  all  the  branches. 

and,  according  to  our 
view,  the  whole  must  be 
regarded  as  a  single  lode. 
In  connection  with  a 
large  complex  lode,  such 
as  shown  on  figures  6,  7, 
8,  and  9  (on  pages  650, 
651) ,  it  is  sometimes  diffi- 
FlGUEE  105.  cult  to  determine  whether 

or  not  the  various  points  of  outcrop  taken  together  con- 
stitute a  single  apex,  and  whether  included  masses  of 
barren  rock  constitute  ''horses"  belonging  to  one  vein, 
or  country  rock  in  place  separating  distinct  vein  apices. 

Most  veins  have  small  spurs  and  offshoots.  Just 
where  to  draw  the  line  or  make  the  distinction  between 
"spurs"  and  separate  branch  veins  in  a  legal  sense  is 
a  matter  difficult  to  determine.  Certainly  no  inexor- 
able rule  can  be  prescribed  in  advance  of  some  authori- 
tative decision  on  the  subject,  and  we  are  aware  of 
none. 

In  the  tracing  of  a  vein  there  are  two  important  ele- 
ments—the continuity  of  vein  matter  and  the  con- 
tinuity of  wall  boundaries. 

With  either  of  these  things  well  established,  very 

slight  evidence  may  be  accepted  as  to  the  existence  of 

the  other.®^ 

91  Iron  S.  M.  Co.  v.  Cheesman,  116  IT.  S.  530,  536,  6  Sup.  Ct.  Eep. 
481.  29  L.  ed.  712;  Collins  v.  Bailey  (Colo.  App.),  125  Pac.  543,  547. 


1479 


IDENTITY  AND  CONTINUITY  OF  VEINS. 


§615 


A  vein  to  be  followed  must  be  continuous  only  in  the 
sense  that  it  can  be  traced  by  the  miner  through  the 
surrounding  rocks.®-  Continuous  ore  is  doubtless  the 
best  evidence,  but  it  is  not  essential.  Many  veins 
carry  only  small  ' '  shoots "  of  ore,  and  the  intervening 
spaces  are  represented  only  by  a  continuous  fissure 
with  or  without  gangue  and  gouge  material. 

A  vein  is  by  no  means  always  a  straight  line,  or  of 
uniform  dip,  or  thickness,  or  richness  of  mineral  mat- 
ter, throughout  its  course.     The  cleft,  or  fissure,  in 
which  a  vein  is  found  may  be  narrowed  or  widened 
in  its  course,  and  even  closed  for  a  few  feet  and  then 
found  further  on,  and  the  mineral  deposit  may  be 
diminished  or  totally  sus- 
pended for   a    short  dis- 
tance ;  Init  if  found  again 
in  the  same  course,  with 
the  same  mineral,  within 
that  distance,  its  identity 
may  be  presumed. ^^ 
But,  as   pointed   out   by 
the  supreme  court  of  Mon- 
tana in  the  case  heretofore 
referred  to,®*  identity  is  not 
necessarily  destroyed  by  in- 
trusive   dikes,    faults,    or 
casual     displacements.®® 


Figure  106. 


Figure  107. 


92  Cheesman  v.  Shreeve,  40  Fed.  787,  17  Morr.  Min.  Eep.  260. 

93  Iron  S.  M.  Co.  v.  Cheesman,  116  U.  S.  529,  534,  6  Sup.  Ct.  Rep.  481, 
29  L.   ed.  712. 

94  Butte  &  Boston  M.  Co.  v.  Societe  Anonyme  des  Mines  de  Lexing- 
ton, 23  Mont.  177,  75  Am.  St.  Kep.  505,  58  Pac.  Ill,  113. 

95  Stevens  &  Leiter  v.  Williams,  Fed.  Cas.  No.  13,414,  1  Morr.  Min. 
Eep.  557;  Grand  Central  M.  Co.  v.  Mammoth  M.  Co.,  29  Utah,  490, 
83  Pac.  648,  676;  appeal  dismissed,  213  U.  S.  72,  29  Sup.  Ct.  Rep. 
413,  53  L.  ed.  702. 


§  615      OBSTACLES    INTERRUPTING    EXTRALATERAL    RIGHT.        1-480 


Certainly  in  the  case  shown 
on  figure  106  the  intruding 
dike  does  not  destroy  vein 
identity,  although  it  inter- 
rupts its  continuity  in  a 
physical  sense. 

So  in  the  case  illustrated 
on  figure  107,  representing 
FiGTJEE  108.  a  very  common  occurrence, 

— viz.,  a  "normal  fault," — the  fault  fissure  having 
been  formed  after  the  vein,  the  hanging-wall  of  the 
fault  plane  has  slipped  or  has  been  thrown  downward 
relatively  to  the  foot-wall,  and  has  carried  with  it  a 
part  of  the  vein;  or  a  "reversed  fault,"  as  represented 
on  figure  108,  where  the  hanging-wall  of  the  fault 
plane  has  been  thrust  upward  relatively  to  the  foot- 
wall;  or  a  fault  with  horizontal  displacement,  a  "lat- 
eral heave,"  as  shown  in  plan  on  figure  109. 


Figure  109.  Figijee  110. 

Wliile  it  is  at  times  difficult  to  establish  the  identity 
of  the  dislocated  parts,  yet  it  is  often  easily  determined. 
For  example,  a  portion  of  the  vein  material  may  be 
"dragged"  along  the  fault  fissure,  as  illustrated  on 
figure  110,  and  furnish  a  continuous  ore  tracing. 
Again  the  foot  and  hanging  walls  of  the  vein  may  be 
of  different  material,  as  shown  on  figure  111,  thus  fur- 
nishing a  definite  indication  of  the  fault ;  or  there  may 
be  complex  structure  of  the  vein  at  the  point  of  fault- 


1481 


IDENTITY  AXD  CONTINUITY  OF  VEINS. 


§615 


ing,  as  shown  on  figure  112,  so  as  to  identify  the  part 
thrown ;  or  there  may  be  changes  of  formation  near  at 


xs-i^-^-'-rK 


-•Apex 


FiGUEE   111.  FiGTJEE   112. 

hand  and  disclosed  in  the  workings,  as  shown  on  figure 
113,  furnishing  the  information  for  the  reconstruction 
of  the  section. 

In  all  of  these  illustrated  cases  the  continuity  may  be 
said  to  have  been  interrupted,  but  the  identity  of  the 
part  separated  by  faulting 
is  easily  established. 

Occurrences  of  the  char- 
acter illustrated  on  the 
foregoing  figures  seem  to 
follow  certain  rules  ^^  recog- 
nized not  only  in  treaties 
on  dynamic  geology  but  by 
the  practical  miner,  who 
finds  but  little  difficulty  in 
ascertaining  the  position  of 
the  faulted  part  of  his  vein.  But  there  are  other  condi- 
tions encountered  which  are  much  more  complex,  pre- 
senting complications  which   follow  no    definite  rule. 


FiGTJEE  113. 


96  For  rules  for  the  determination  of  faults,  see  monograph  of  Mr. 
Francis  T.  Freelajid,  Trans.  A.  I.  M.  E.,  vol.  xxi,  p.  491. 


§  615      OBSTACLES    INTERRUPTING    EXTRALATERALi    RIGHT.        1482 

where  it  is  more  difficult  to  determine  the  vexed  ques- 
tion of  identity."^ 

We  may  select  as  an  illustration  of  complexities  in 
vein  structure  without  faulting  the  case  of  Pennsyl- 
vania Consolidated  Mining  Company  v.  Grass  Valley 
Exploration  Company,  tried  before  and  decided  by 
Judge  Morrow,  in  the  circuit  court  of  the  United 
States,  ninth  circuit,  northern  district  of  California.** 

The  Pennsylvania  company  owned  the  Pennsylvania 
quartz  mine,  part  of  which  is  shown  on  figure  114, 
within  which  it  claimed  the  apex  of  the  Peimsylvania 
vein,  to  the  extent,  at  least,  as  shown  by  the  red  line 
on  the  figure.  On  its  downward  course  the  vein  passed 
underneath  the  surface  of  the  patented  agricultural 
land  and  townsite  lots,  held  under  a  junior  title  by  the 
Grass  Valley  Exploration  Company.  That  company 
also  owned  the  W.  Y.  0.  D.  mine  and  numerous  other 
mining  claims,  which,  with  their  agricultural  and  town- 
site  holdings,  practically  surrounded  the  Pennsyl- 
vania quartz  mine.  The  Grass  Valley  Exploration 
Company,  by  means  of  underground  works  extending 
from  the  TV.  Y.  0.  D.  shaft,  reached  ore  bodies  under- 
neath the  Pennsylvania  shaft,  and  the  works  of  the 
two  companies  came  together.     Suits  were  brought  by 

97  For  instances  and  illustrations  of  faulting  in  the  Golden  Gate 
mine  at  Croydan,  Queensland,  see  vol.  93,  Mining  and  Scientific  Press, 
p.  322.  See,  also,  monograph  of  Mr.  T.  A.  Rickard,  then  state  geolo- 
gist of  Colorado,  on  the  Enterprise  mine,  Eico,  Colorado,  Trans.  A.  I. 
M.  E.,  vol.  xxvi,  p.  921.  The  contributions  to  the  literature  of  faults 
appearing  in  the  Transactions  of  the  American  Institute  of  Mining 
Engineers  are  numerous  and  of  great  value  not  only  to  the  geologist 
but  to  the  legal  practitioner.  A  list  of  these,  together  with  a  bibli- 
ography on  the  subject  of  faults,  may  be  found  by  consulting  the  index 
to  the  Transactions,  vols,  i-xxxv,  and  the  indices  to  the  later  volumes. 

88  117  Fed.  509,  22  Morr,  Min.  Rep.  306. 


1483 


IDENTITY  AND  CONTINUITY  OF  VEINS. 


615 


both  parties  to  determine  the  ownership  of  the  ore 
bodies  underneath  the  agricultural  and  townsite  lands. 
The  burden  of  proving  apex  and  identity  and  the  con- 
ditions essential  to  the  establishment  of  an  extralateral 
right  rested  with  the  Pennsylvania  company.^^ 

Judge  Morrow  describes  and  analyzes  the  physical 
conditions  at  considerable  length,  and  his  opinion  is 
comprehensively  illustrated  with  diagrams.  As  here- 
tofore observed,  figure  114  shows  the  Pennsylvania 
location  to  the  extent  necessarj^  for  present  purposes. 
The  red  line  indicates  the  vein-apex  as  claimed  by  the 


Figure  114. 

Pennsylvania,  crossing  the  north  end-line  and  extend- 
ing southerly  as  far  as  developed.  The  Pennsylvania 
end-lines  are  parallel.  The  vein  is  a  gold-bearing 
quartz  vein  in  grano-diorite,  dipping  about  thirty 
degrees  to  the  west. 

99  Post,  §  866.  ■ 


§  615   OBSTACLES  INTERRUPTING  EXTRALATERAL  RIGHT.   1484 

Figure  115  illustrates  the  contention  of  the  Grass 
Valley  company  to  the  effect  that  the  above  claimed 
apex  does  not  represent  a  single  vein,  but  is  composed 
of  a  series  of  apices  of  intersecting  veins,  colored  green 
and  orange  on  the  diagram ;  that  these  apices  prolonged 


FiGIJEE  115. 

would  cross  the  side-lines  of  the  location  and  convey 
no  extralateral  right  to  the  ore  bodies  in  dispute.  This 
contention  is  specially  illustrated  on  figure  116. 


FiGUKE  116. 

The  court,  in  speaking  of  the  intersections  claimed 
by  the  Grass  Valley  company,  says : — 

In  my  judgment,  the  evidence  demonstrated  noth- 
ing more  than  a  main  vein  with  projected  seams  or 
spurs  at  these  points.  These  seams  or  spurs  were 
not  traced  for   any  distance,  and   were   not  found 


1485  IDENTITY  AND  CONTINUITY  OF  VEINS.  §  615 

crossing  any  side-line  of  the  Pennsylvania  claim. 
Whatever  these  seams  or  spurs  may  be  called,  or  to 
whatever  extent  they  may  have  been  found,  they  did 
not  destroy  the  continuity  of  the  main  vein. 

The  court  then  found  that  the  apex  was,  as  claimed 
by  the  Pennsylvania  company,  continuous  ' '  lengthwise 
of  the  claim  to  the  extent  and  in  the  direction  neces- 
sary to  embrace  within  extended  end-line  planes  the 
vein  or  lode  in  controversy. ' ' 

The  remaining  question  is.  Has  this  vein  or  lode 
such  a  continuity  or  persistence  in  its  dip  or  down- 
ward course  as  to  include  the  ore  deposit  in  dispute. 

The  position  of  the  "ore  deposit  in  dispute"  is  indi- 
cated by  the  network  of  underground  workings  to  the 
west  of  the  Pennsylvania  location,  as  shown  on  figure 
114. 

The  vein  is  comparatively  simple  at  the  surface,  and 
so  extends  downward  three  hundred  or  four  hundred 
feet  on  the  incline.    Thence  downward 
it  becomes  more  complex,  consisting  in 
certain  sections  of  west  and  east  dip- 
ping branches,  as  claimed  by  the  Penn- 
sylvania company,  or  of  a  series  of 
independent  veins,  as  claimed  by  the 
Grass  Valley  company.  It  was  at  these 
points  of   complication   that   the   as- 
serted  continuity  of  the  Pennsylvania     FiGUEE  11^. 
vein  was  most  strongly  disputed. 

These  complications,  as  described  by  the  Pennsyl- 
vania company's  witnesses,  consisted  in  a  stepping 
down  of  the  vein  from  an  overlapping  to  an  underlap- 
ping  west-dip  fissure  through  a  system  of  subordinate 
east-dip  fissures,  as  illustrated  on  figure  117. 


§  615   OBSTACLES  INTERRUPTING  EXTRALATERAL  RIGHT.   1486 

This  is  a  vertical  cross-section  of  one  of  the  compli- 
cations—west being  from  the  right  to  the  left  side  of 
the  figure. 

The  court  cites  the  testimony  of  one  of  the  witnesses 
describing  this  section  as  follows: — 

If  we  follow  the  main  fissure  downward  on  its 
westerly  dip,  we  find  it  flattening,  weakening,  and 
pinching  out ;  but  before  pinching  there  fall  from^  it 
a  series  of  east-dip  fissures  which  connect  below  with 
an  underlapping  west-dip  fissure  This  underlap 
flattens,  weakens  and  pinches  out  on  its  upward 
course,  but  on  its  downward  course  it  strengthens 


FiGUEE  118. 


and  becomes  a  strong  ore-bearing  vein The 

channel  ....  is  simply  complicated  by  this  network 
of  fissures.     Its  continuity  ....  is  not  disturbed. 

The  most  important  of  these  complications  is  shown 
in  the  so-called  Horseshoe-winze  section  (figure  118). 

Here  some  of  the  east  ''dippers"  have  been  stoped 
for  ore.  In  the  complications  elsewhere  the  ' '  stepping 
down"  is  through  six  or  eight  feet,  but  in  the  Horse- 


1487  IDENTITY  AND  CONTINUITY  OF  VEINS.  §  615 

shoe  section  it  is  through  fifty  feet  or  more  of  trans- 
versely fissured  ground. 

Figure  119,  taken  from  one  of  the  exhibits,  gives  a 
more  complete  vertical  cross-section  of  the  vein. 

The  Grass  Valley  company  contended  that  there  is 
no  continuity  of  the  Pennsylvania  vein  through  the 
above  complications ;  that  these  east-dip  fissures  inter- 
sect the  west-dip  fissures,  and,  extending  in  their  own 
directions,  constitute  independent  transverse  veins,  as 
illustrated  on  figure  120. 


Figure  119.  Figure  120. 

The  theory  was  advanced  that  the  country  rock  was 
divided  into  rhombohedral  blocks  by  means  of  a  subdi- 
visional  joint-plane  system,  and  that  distinct  veins 
were  formed  upon  the  various  faces  of  the  rhombohe- 
drons.  As  to  this  rhombohedral  theory,  the  court  was 
of  the  opinion  that  it  might  account  for  some  of  the 
irregularities  in  the  course  of  the  vein  shown  in  the 
underground  workings.  For  the  purpose  of  illustra- 
tion, let  us  assume  the  subdivision  of  the  earth's  crust 
by  means  of  a  rhombohedral  joint-plane  system  and 
add  to  it  the  assumption  that  there  must  be  a  great 
break  or  line  of  fissuring  across  the  country  to  form  an 
important  vein.  If  the  direction  of  the  deep-seated 
forces  were  such  as  to  produce  the  great  fissure  con- 
tinuously along  the  line  of  one  of  these  joint-planes  we 
might  have  ultimately  a  fairly  straight-line  fissure 
vein.     But  if  strains  were  such  as  to  give  the  great 


§  615      OBSTACLES    ENTTERRUPTING    EXTKALATERAL    RIGHT.        1488 

break  a  general  course  not  so  conforming,  as  on  figure 
121,  there  would  doubtless  occur  a  line  of  Assuring 
such  as  A-B,  partly  following  joint  planes,  partly  cut- 
ting across  the  rhombohedral  blocks.  Let  there  be  a 
subsequent  filling  of  the  opening  by  a  mineral  stream 
coursing  through  it.  In  such  case  what  constitutes  the 
vein?  Certainly  not  an  original  joint-plane,  but  the 
filling  of  the  main  break  from  A  to  B. 


FiGUKE  121. 

The  court  found,  however,  that  ''the  continuation  of 
the  east-dipping  fissures  has  not  been  satisfactorily 
established  at  any  point  where  the  two  veins  come 
together" ;  also,  that  the  above  theory  is  not  in  conflict 
with  the  claim  of  continuity  of  the  Pennsylvania  vein 
through  the  complications. 

By  a  circuitous  route  the  vein  was  followed  continu- 
ously downward  on  a  westerly  dip  from  the  apex  to  the 
lowest  level  without  the  intervention  of  any  complica- 
tion. Both  to  the  north  and  to  the  south  of  the  Horse- 
shoe winze  the  vein  was  so  traced  from  the  seven- 
hundred-foot  level  to  the  bottom  level,— i.  e.,  from  a 
level  above  the  Horseshoe  complication  to  a  level  below 
it.  The  court  considers  that  the  bearings  of  these 
facts  were  not  overcome  by  evidence  of  complications 
elsewhere,  and  says : — 

To  my  mind,  the  most  conclusive  fact  establishing 
the  continuity  of  the  Pennsylvania  vein  is  this  fact, — 
that  the  vein  can  be  followed  as  a  dominant  persist- 
ent vein  from  the  surface  through  continuous  stopes 
down  to  the  lower  workings  of  the  mine. 


1489  IDENTITY   AND   CONTINUITY  OF   \T:INS.  §  615 

In  the  northwesterly  portion  of  the  mine,  there  is  a 
marked  divergence  of  the  strike  of  the  vein  in  depth 
from  the  course  of  the  apex.  The  Grass  Valley  com- 
pany urged  this  as  an  objection  to  the  claim  of  identity 
and  continuity.     But  the  court  says: — 

This  fact  would  be  of  some  importance  if  the  vein 
was  an  ideal  one,  maintaining  a  uniform  strike  and 
dip  throughout  its  entire  course.  But  it  is  not  an 
ideal  vein,  and  there  are  very  few  such  to  be  found. 
....  This  twisting  or  turning  of  the  vein  is  ac- 
counted for  ....  by  the  folding  of  the  rock  under 

pressure  and  contraction This   objection  to 

the  Pennsylvania  vein  is,  in  my  judgment,  without 
any  force 

It  follows  from  these  considerations  that  I  am  of 
the  opinion  that  the  Pennsylvania  company  has 
established  its  right  to  all  the  ore  bodies  and  sections 
of  the  mine  in  dispute. 

The  distinction  between  the  character  of  complica- 
tions existing  in  the  Pensylvania  case  and  the  occur- 
rence of  faulting  and  normal  displacements  previously 
illustrated  is  manifest.  The  difficulties  of  determining 
identity  increase  as  complexities  are  multiplied,  and 
necessarily  each  case  must  be  determined  upon  a  con- 
sideration of  the  peculiar  facts  therein  developed. 

Speaking  of  the  difficulties  surrounding  this  class  of 
cases.  Judge  Hawley  has  pertinently  said : — 

In  all  controversies  concerning  the  identity  of  ore 
bodies  found  on  different  levels  at  various  depths 
beneath  the  surface  there  is  always  room  for  a  wide 
divergence  of  opinion  among  men  of  equal  credit  and 
experience  as  miners.  The  absolute  truth  is  often 
difficult  to  ascertain,  except  in  cases  where  connec- 
tions are  made  between  the  different  bodies  of  ore 

found  on  different  levels A  wide  latitude  is 

always  permissible  for  the  purpose  of  ascertaining 

Lindley  on  M. — 94 


§  616  CONVEYANCES  AFFECTING  EXTRALATERAL  RIGHT.        1190 

the  reasoning  upon  which  the  conclusions  of  wit- 
nesses are  based  as  well  as  their  general  knowledge 
of  the  ground,  their  experience  and  observations,  and 
their  qualifications  as  practical  miners  or  experts 
derived  from  years  of  experience  in  the  particular 
district  where  the  ore  bodies  in  question  are  f  ound/°" 


Article  VI.    Conveyances  Affecting  the  Extra- 
lateral  Right. 


§616. 
§617. 


618. 


618a, 


Introductory. 

Conveyance  of  the  loca- 
tion containing  the  apex 
of  the  vein  conveys  the 
extralateral   right. 

Extent  of  extralateral 
right  passing  by  convey- 
ance of  part  of  the  loca- 
tion. 

Effect  on  extralateral 
right  where  owner  of  the 


location  conveys  the  ad- 
joining ground  into 
which  the  vein  pene- 
trates on  its  downward 
course. 
§  618b.  Effect  of  conveyances  of 
segregated  parts  of  un- 
patented claims. 


§  616.  Introductory. — It  is  not  our  purpose  to  enter 
into  a  general  discussion  of  the  operative  force  of  or- 

100  Justice  M.  Co.  v.  Barclay,  82  Fed.  554,  556,  citing  Overman  S.  M. 
Co.  V.  Corcoran,  15  Nev.  153,  1  Morr.  Min.  Rep.  691;  Book  v.  Justice 
M.  Co.,  58  Fed.  106,  111,  17  Morr.  Min.  Rep.  617;  Cons.  Wyoming  M. 
Co.  V.  Champion  M.  Co.,  63  Fed.  540,  544,  18  Morr.  Min.  Rep.  113; 
Columbia  Copper  M.  Co.  v.  Duchess  M.  &  M.  Co.,  13  Wyo.  244,  79  Pac. 
385,  387. 

In  the  case  of  Davis  v.  Shepherd,  31  Colo.  141,  72  Pac.  57,  22  Morr. 
Min.  Rep.  575,  the  owner  of  a  claim  overlying  the  dip  of  a  vein  had 
excavated  the  vein  so  that  there  was  a  void  between  the  overlying  apex 
in  his  adversary's  ground  and  the  unmined  parts  of  the  vein.  He  had 
the  temerity  to  insist  that  this  artificial  vacancy  created  by  himself 
destroyed  the  continuity  of  the  vein  so  as  to  deprive  the  apex  proprietor 
of  his  right  to  follow  his  vein  downward.  The  court  seems  to  have 
taken  the  contention  seriously.  Its  ruling  was,  "that  a  portion  of  the 
vein  has  been  removed  does  not  change  the  fact  that  the  vein  below 
the  point  of  such  removal  is  the  same  as  the  one  apexing  in  appellee's 
claim." 


1491  INTRODUCTORY.  §  616 

dinary  conveyances  of  land.  We  may  accept  without 
comment  or  elaboration  the  familiar  rule  of  the  com- 
mon law  stated  by  Blackstone,  that  when  one  conveys 
land,  that  term 

includes  not  only  the  surface  of  the  earth  but  every- 
thing under  it  or  over  it.  And  therefore  if  a  man 
grants  all  his  lands  he  grants  all  his  mines  of  metal 
and  other  fossils,  his  woods,  his  waters,  and  his 
houses,  as  well  as  his  fields  and  meadows.  From  the 
operation  of  conveyances  of  this  nature  by  individ- 
uals, the  minerals  of  gold  and  silver  are  not  reserved, 
unless  by  express  terms.  They  pass  with  the  trans- 
fer of  the  soil  in  which  they  are  contained. 

In  other  words,  at  common  law  a  deed  of  real  estate 
conveys  all  beneath  the  surface  unless  there  be  some 
words  of  excei^tion  or  limitation.^ 

But  if  we  except  royal  mines  in  crown  grants,  which 
under  the  regalian  doctrine  were  always  reserved,^ 
there  was  no  implied  reservation  at  common  law  at- 
taching to  land  grants.  Nor  was  there  anything  in 
the  system  of  land  laws,  except  perhaps  under  the  local 
customs  in  Derbyshire,*  resembling  the  extralateral 
right  granted  to  lode  locators  under  the  federal  laws. 
While,  as  we  have  heretofore  observed,^  the  grant  of 
the  extralateral  right  sanctioned  by  these  laws  is 
analogous  to  a  common-law  severance  and  not  in  con- 
travention of  such  law,  it  is  quite  manifest  that  the 
conditions  and  governmental  policy  in  dealing  with 
public  lands  in  the  United  States  or  in  such  states  and 
territories  as  are  subject  to  the  federal  mining  laws, 
so  far  as  the  mining  industry  is  concerned,  are  quite 

1  Montana  M.  Co.  v.  St.  Louis  M.  &  M.  Co.,  204  U.  S.  204,  217,  27 
Sup.  Ct.   Rep.   254,  51  L.  ed.  444. 

2  Aide,  §  3. 

.    s  Ante,  §  9,  p.  18. 
*  §  568. 


^  616  CONVKYANCES  AFFECTING  EXTBALATERAL  RIGHT.        1492 

different  from  the  conditions  and  policy  existing  in 
England. 

So  in  interpreting  a  conveyance  of  a  tract  of  land 
situated  in  the  precious  metal  bearing  states  and  terri- 
tories elements  are  to  be  considered  which  did  not  ex- 
ist at  common  law.  The  courts  in  construing  deeds 
and  instruments  purporting  to  deal  with  lands  which 
were  originally  public  lands  are  called  upon  to  con- 
sider the  nature  and  character  of  the  property  in- 
volved, the  muniments  of  title  under  which  they  are 
held,  and  all  parts  of  the  cognate  system  of  federal 
legislation  dealing  with  the  primary  disposal  of  the 
soil. 

As  was  aptly  said  by  Chief  Justice  Beatty,  now  chief 
justice  of  California,  but  then  sitting  on  the  supreme 
bench  of  the  state  of  Nevada: — 

The  doctrine  of  the  common  law,  that  he  who  has  a 
right  to  the  surface  of  any  portion  of  the  earth  has 
also  the  right  to  all  beneath  and  above  that  surface, 
has  but  a  limited  application  to  the  rights  of  miners 
and  others  using  the  public  lands  of  this  state. 
Necessity  has  compelled  a  great  modification  of  that 
doctrine — to  adhere  to  the  common-law  rules  on  this 
subject  is  simply  impossible.  To  attempt  to  carry 
out  common-law  doctrines  on  this  point  would  either 
give  all  the  houses  in  Virginia  [City]  to  the  mining 
corporations  or  else  all  the  most  valuable  mines  to 
those  occupying  the  houses.  The  well-established 
custom  of  miners  to  locate  veins  of  mineral,  claiming 
to  follow  them  with  all  their  dips,  spurs,  and  angles, 
without  reference  to  the  occupancy  of  the  surface, 
has  compelled  a  departure  from  common-law  rules.* 

So  in  interpreting  conveyances  of  property  situated 
in  the  precious  metal  bearing  states  "the  language 

6  Bullion  M.  Co.  v.  Croesus  M.  Co.,  2  Nev.  168,  90  Am.  Dec.  526,  & 
Morr.  Min.  Rep.  254. 


1493  CONVEYANCE  OF  LOCATION.  §  617 

used  is  to  be  construed  with  reference  to  the  peculiar 
property  about  which  the  parties  were  contracting."' 

This  general  principle  is  recognized  by  the  supreme 
court  of  the  United  States  in  Montana  M.  Co.  v.  St. 
Louis  M.  &  M.  Co./  although,  as  we  shall  see  later,  the 
court  held  that  these  considerations  were  not  sufficient 
to  overcome  the  effect  of  the  deed  in  question,  owing  to 
the  fact  that  the  instrument  in  terms  purported  to 
convey  "all  the  mineral  therein  contained." 

It  is  our  purpose  to  briefly  analyze  and  illustrate  the 
cases  to  which  these  rules  have  been  applied,  and  note 
their  practical  application  to  a  variety  of  conditions 
arising  out  of  conveyances  affecting  the  extralateral 
right. 

§  617.  Conveyance  of  the  location  containing  the 
apex  of  the  vein  conveys  the  extralateral  right.— Under 
the  existing  mining  laws  a  locator  acquires  a  tract  of 
ground  the  boundaries  of  which  are  marked  upon  the 
surface.  If  within  the  tract  so  marked  there  is  dis- 
covered a  vein  the  apex  of  which  passes  through  two 
parallel  lines  or  through  one  end-line  and  a  side-line, 
or  in  any  manner  so  as  to  convey  an  extralateral  right 
according  to  the  principles  heretofore  discussed,  the 
locator  becomes  the  owner  of  all  such  surface,  and  of 
all  veins  which  have  their  tops,  or  apices,  therein 
throughout  their  entire  depth  between  the  extended 
end-line  planes  of  the  location,  although  such  veins  on 
their  downward  course  pass  out  of  and  beyond  verti- 
cal planes  drawn  through  the  side-lines.     The  owner- 

6  Richmond  M.  Co.  v.  Eureka  M.  Co.,  103  U.  S.  839,  846,  26  L.  ed. 
557,  9  Morr.  Min.  Eep.  634;  Montana  M.  Co.  v.  St.  Louis  M.  &  M.  Co., 
102  Fed.  430,  432,  42  C.  C.  A.  415,  2*0  Morr.  Min.  Rep.  507;  Montana 
O.  P.  Co.  V.  Boston  &  Montana  Cons.  C.  &  S.  Co.,  27  Mont.  536,  73. 
Pac.  1005,  1008. 

7  204  U.  S.  204,  217,  27  Sup.  Ct.  Eep.  254,  51  L.  ed.  444. 


§  617  CONVEYANCES  AFFECTING  EXTRALAl'ERAL  RIGHT.        1494 

ship  of  the  outside  parts  of  these  veins  flows  by  virtue 
of  the  statute  from  the  ownership  of  the  surface 
embracing  the  apex.  It  would  flow  from  the  patent 
when  issued  under  the  statute,  regardless  of  any  ex- 
press grant  thereof.* 

The  outside  parts  of  the  vein  are  just  as  much  a  part 
of  the  location  as  if  entirely  within  its  surface  lines.* 

As  the  statute  is  a  muniment  of  the  title,  by  which 
the  extent  of  the  grant  is  to  be  measured,  a  convej^ance 
of  the  location,  either  by  name  or  by  description  of  its 
surface  boundaries,  would  necessarily  carr}^  with  it 
such  portions  of  the  vein  as  in  contemplation  of  the 
law  formed  a  part  of  the  location,  without  the  neces- 
sity of  making  a  specific  grant  of  the  extralateral  right. 
The  supreme  court  of  the  United  States  has  said  that 
it  is  probably  not  necessary  to  specify  extralateral 
rights  in  order  that  a  conveyance  of  a  mining  claim 
be  operative  to  transfer  them.^°  In  the  early  period 
of  mining  in  the  west,  at  a  time  when  no  serious  sig- 
nificance attached  to  surface  boundaries,  when  the  vein 
was  the  principal  thing  sought  and  obtained  by  loca- 
tion, and  the  surface  was  a  mere  incident,  it  was 
customary  to  insert  in  a  conveyance  of  a  mining  claim, 
after  the  habendum  clause,  the  phrase  "together  with 
all  the  dips,  spurs,  angles,  and  variations,  "^^  or  lan- 

8  Doe  V.  Waterloo  M.  Co.,  54  Fed.  935,  941;  Montana  0.  P.  Co.  v. 
Boston  &  Montana  Cons.  C.  &  S.  Co.,  27  Mont.  288,  70  Pac.  1114,  1124; 
S.  C,  on  rehearing,  27  Mont.  536,  71  Pac.  1005,  1008. 

9  Tyler  M.  Co.  v.  Last  Chance  M.  Co.,  90  Fed.  15,  21,  32  C.  0.  A. 
498.  See,  also,  Bunker  Hill  &  Sullivan  M.  &  C.  Co.  v.  Shoshone  M.  Co., 
33  L.  D.  142;  Central  Eureka  M.  Co.  v.  East  Central  Eureka  M.  Co., 
146  Cal.  147,  79  Pac.  834,  836,  9  L.  E.  A.,  N.  S.,  940;  affirmed  on 
appeal,  204  U.  S.  266,  27  Sup.  Ct.  Eep.  258,  51  L.  ed.  476;  Davis  v. 
Shepherd,  31  Colo.  141,  72  Pac.  57,  58,  22  Morr.  Min.  Rep.  575. 

10  Montana  M.  Co.  v.  St.  Louis  M.  &  M.  Co.,  204  U.  S.  204,  217,  27 
Sup.  Ct.  Rep.  254,  51  L.  ed.  444. 

11  See   remarks  of   the   court  as   to   this   custom  in   Montana  M.   Co. 


1495  CONVEYANCE  OP  LOCATION.  §  617 

guage  of  similar  import,  which  custom  is  still  followed 
in  certain  states  and  territories.  Such  a  clause  is 
superfluous  and  would  not  tend  to  strengthen  a  con- 
veyance describing  the  location  by  name  or  by  metes 
and  bounds.  A  conveyance  of  the  latter  class  would 
suffice  to  pass  everything  which  under  the  law  per- 
tained to  the  location.  This  is  by  reason  of  the  nature 
and  character  of  the  property  which  is  the  subject  of 
the  transaction.  No  such  etTect  could  be  given  to  such 
a  conveyance  at  common  law,  simply  for  the  reason 
that  no  such  kind  of  property  was  recognized  by  that 
law. 

An  illustration  of  the  application  of  this  rule  is  found 
in  the  case  of  Eureka  Consolidated  Mining  Company 
V.  Richmond  Mining  Company,^-  the  facts  of  which 
are  illustrated  on  figure  54,  which  is  herewith  repro- 
duced. 

In  that  case  a  controversy  arose  between  the  Eureka 
company,  owning  the  Champion,  At  Last,  Margaret, 
and  other  claims,  and  the  Richmond  company,  owning 
the  Richmond,  Tip  Top,  and  Look  Out,  over  their 
respective  rights  on  the  vein, — the  apex  of  which  in 
its  course  was  found  to  traverse  the  claims  of  both 
companies.  A  compromise  agreement  was  entered 
into  whereby  a  line  was  established  between  them  (the 
hatched  line  X-W  on  figure  54,  and  reaching  the  north- 
west corner  of  the  Nugget). 

The  Richmond  company  conveyed  to  the  Eureka 
company  everything  on  the  southeasterly  side  of  the 
line  and  all  its  title  "in  and  to  all  ores,  precious  metals, 
veins,  lodes,  ledges,  deposits,  spurs,  and  angles,  on,  m, 
or  under  said  land  or  mining  ground  or  any  part 
thereof."     The    Eureka     company    conveyed    to    the 

V.  St.  Louis  M.  &  M.  Co.,  204  U.  S.  204,  217,  27  Sup.  Ct.  Rep.  254,  51 
L.  ed.  444. 

"  4  Saw.  302,  Fed.  Cas.  No.  4548,  9  Morr.  Min.  Rep.  578. 


§  617  CONVEYANCES  AFFECTING  EXTRALATERAL  RIGHT.        1496 


Eichmond  everything  on  the  northwesterly  side  of  the 
line,  the  conveyance  containing  a  similar  clause. 


Figure  54. 


1497  CONVEYANCE  OF  LOCATION.  §  617 

Subsequently  a  dispute  arose  as  to  the  ownership  of 
the  Pott's  Chamber,  an  extensive  ore  body  found  to 
be  on  the  vein  outcropping  in  the  claims  of  both  par- 
ties, which  was  not  intersected  by  the  vertical  plane 
drawn  through  the  compromise  line.  The  Richmond 
company  contended  for  the  common-law  rule  of  con- 
struction, which  would  limit  the  operation  of  the  con- 
veyance to  such  ores  as  were  found  underneath  the 
surface  of  the  Eureka  claims,  southeast  of  the  com- 
promise line,  terminating  at  X,  and  that  the  court 
could  not  extend  the  line  W-X  in  the  direction  of  C,  for 
the  purpose  of  taking  in  any  part  of  the  Pott's  Cham- 
ber. The  Eureka  company  contended  that  the  divid- 
ing line,  having  been  established  crossing  the  lode  at 
the  surface,  considering  the  nature  and  character  of 
the  property,  the  conveyance  carried  the  extralateral 
right,  and  that  the  compromise  line  should  be  extended 
indefinitely  in  the  direction  of  the  dip. 

In  upholding  the  latter  contention,  Judge  Field,  sit- 
ting as  circuit  justice  with  Judges  Sawyer  and  Hillyer, 
said : — 

The  line  thus  designated  [the  compromise  line], 
extended  in  a  direct  line  along  the  dip  of  the  lode, 
would  cut  the  Pott's  Chamber  and  give  the  ground  in 
dispute  to  the  plaintiff.  That  it  must  be  so  extended 
necessarily  follows  from  the  character  of  some  of  the 
claims  it  divides.  As  the  Richmond  and  the  Cham- 
pion were  vein  or  lode  claims,  a  line  dividing  them 
must  be  extended  along  the  dip  of  the  vein  or  lode,  so 
far  as  that  goes,  or  it  will  not  constitute  a  boundary 
between  them.  All  lines  dividing  claims  upon  veins 
or  lodes  necessarily  divide  all  that  the  location  car- 
ries and  would  not  serve  as  a  boundary  between  them 
if  such  were  not  the  case.^* 

13  Eureka  M.   Co.  v.   Richmond  M.   Co.,  4  Saw.  S02,  Fed.   Caa.  No. 
4548,  9  Morr.  Min.  Rep.  578. 


§  618  CONVEYANCES  AFFECTING  EXTBALATERAL  RIGHT.        1498 

This  received  the  approval  of  the  supreme  court  of 
the  United  States.^*  This  case  has  been  followed  in 
several  later  ones  involving  analogous  questions,  to 
be  considered  in  succeeding  sections. 

§  618.  Extent  of  extralateral  right  passing  by  con- 
veyance of  part  of  the  location. — It  frequently  happens 
that  mining  claims  are  divided  and  conveyances  made 
of  a  part  of  the  location.  This  class  of  instruments  is 
quite  often,  if  not  usually,  the  result  of  compromises 
arising  out  of  adverse  claims  to  conflicting  surface 
locations.  The  Eureka-Richmond  case  discussed  in 
the  preceding  section  belongs  to  this  class. 

In  the  case  of  Montana  Mining  Company  v.  St.  Louis 
Mining  Company,^^  the  conveyance  in  question  was  exe- 
cuted under  a  state  of  facts  which  are  illustrated  on 
figure  122.  The  St.  Louis  company  owned  the  St. 
Louis,  the  prior  claim.  The  Nine  Hour  was  owned  by 
the  Montana  company.  The  St.  Louis  company  ap- 
plied for  a  patent,  and  included  a  part  of  the  Nine 
Hour  surface,  resulting  in  an  adverse  suit.  This  was 
compromised,  the  Montana  company  withdrawing  its 
adverse,  and  the  St.  Louis  company  agreeing  to  con- 
vey after  patent  the  thirty-foot  strip  A-B-C-E.  After 
patent  issued  the  St.  Louis  company  refused  to  convey. 
A  suit  for  specific  performance  was  brought,  resulting 
in  a  decree  directing  the  execution  of  the  conveyance. ^° 

The  conveyance  as  executed  to  the  Montana  company 
described  the  thirty-foot  strip  by  metes  and  bounds, 

14  Richmond  M.  Co.  v.  Eureka  M.  Co.,  103  U.  S.  839,  846,  26  L. 
ed.  557,  9  Morr.  Min.   Rep.   634. 

15  102  Fed.  430,  42  C.  C.  A.  415. 

16  Montana  M.  Co.  v.  St.  Louis  M.  &  M.  Co.,  20  Mont.  394,  51  Pac. 
824,  19  Morr.  Min.  Rep.  218;  S.  C,  on  writ  of  error,  St.  Louis  M.  & 
M.  Co.  V.  Montana  M.  Co.,  171  U.  S.  650,  19  Sup.  Ct.  Rep.  61,  43  L. 
«d.  320. 


1499 


CONVEYANCE  OF  PART  OF  LOCATION. 


§618 


^'together  with  all  the  mineral  therein  contained,  to- 
gether with  all  the  dips,  spurs,  and  angles,  and  also 
all  the  metals,  ores,  gold  and  silver-bearing  quartz 
rock  and  earth  therein. ' ' 

Subsequently  a  controversy  arose  over  certain  ore 
bodies  found  underneath  the  surface  of  the  thirty-foot 
strip,  the  St.  Louis  company  contending  that  they 
belonged  to  a  vein  (the  secondary,  or  Drum  Lummon 
vein,  shown  on  figure  122)  having  its  apex  within  the 

/      » 
/      ' 


.-O 


i    X    ' 

9     HOUR        ,' 

/        / 


CLAIM 


ORUM     LUM^ 


>% 


!Sd^< 


OF     OR\ZWA,      »'iV  CV-'^ 


Figure  122. 

St.  Louis  claim.  The  Montana  company  claimed  that 
the  ore  bodies  passed  to  it  under  its  deed  to  the  thirty- 
foot  strip.  The  circuit  court  of  appeals  sustained  the 
contention  of  the  St.  Louis  company,  basing  its  con- 
clusions on  the  following  grounds : — 


§  618  CONVEYANCES  AFFECTING  EXTRALATERAL  RIGHT.        1500 

In  interpreting  tlie  conveyance  in  question,  regard 
must  be  had  not  only  to  its  terms,  but  to  the  subject 
matter  involved  and  the  surrounding  circumstances. 
**The  language  used  is  to  be  construed  with  reference 
to  the  peculiar  property  about  which  the  parties  were 
contracting."    Eichmond  M.  Co.  v.  Eureka  M.  Co., 

103  U.  S.  846 If  the  adverse  action  which  was 

brought  by  the  owners  of  the  Nine  Hour  claim  had 
gone  to  trial,  and  had  resulted  in  a  judgment  fully 
sustaining  their  contention,  the  result  would  have 
been  to  fix  a  surface  line  of  division  between  the  two 
claims  without  affecting  rights  to  ores  beneath  the 
surface  otherwise  than  as  they  are  controlled  by  the 
mining  laws  of  the  United  States.  The  owners  of 
the  St.  Louis  claim  would  still  have  retained  the  right 
to  follow  their  vein  extralaterally  on  its  dip  beneath 
the  surface  of  the  strip  of  land  which  was  the  subject 

of  the  conveyance It  is  not  to  be  supposed 

that  the  owners  of  the  St.  Louis  claim  intended  by  the 
compromise  contract  not  only  to  surrender  the  whole 
of  their  contention  concerning  the  true  location  of 
the  boundary  line,  but  also  to  divest  their  claim  of  its 
extralateral  rights, — rights  that  had  not  been  in  liti- 
gation, and  had  not  been  assailed  by  the  owners  of 
the  adjoining  claim.  To  manifest  such  an  intention, 
the  terms  of  the  contract  and  of  the  conveyance 
would,  under  the  circumstances,  need  to  be  clear  and 
explicit.  The  use  of  the  words  "together  with  all 
the  minerals  therein  contained"  is  not  sufficient. ^^ 

The  supreme  court  of  the  United  States,  however, 
reversed  this  ruling,  holding  that  the  language  in  the 
conveyance  heretofore  quoted  must  be  given  effect, 
and  awarded  the  ore  bodies  in  dispute  to  the  Nine 
Hour  claim.^*    At  a  later   date   a   controversy  arose 

17  Montana  M.  Co.  v.  St.  Louis  M.  &  M.  Co.,  102  Fed.  430,  432,  42 
C.  C.  A.  415,  20  Morr.  Min.  Eep.  507;  S.  C,  on  cross-writ  of  error, 
104  Fed.  664,  44  C.  C.  A.  120,  56  L.  R.  A.  725,  21  Morr.  Min.  Rep.  57. 

18  Montana  M.  Co.  v.  St.  Louis  M.  Co.,  204  U.  S.  204,  27  Sup.  Ct. 
Rep.  254,  51  L.  ed.  444. 


1501         CONVEYANCE  OF  PART  OF  LOCATION.         §  618 

between  the  same  parties  over  the  ore  bodies,  part  of 
the  same  vein,  lying  underneath  the  Nine  Hour  sur- 
face east  of  the  east  compromise  boundary  (e.  g.,  the 
point  X  on  figure  122),  which  had  been  extracted  by 
the  Montana  company  while  the  parties  were  litigating 
over  the  compromise  strip.  Suit  was  brought  against 
the  Montana  company  to  recover  damages  for  such 
extraction,  and  an  injunction  was  applied  for  to  pre- 
vent the  Montana  company  from  mining  underneath 
the  compromise  strip,  upon  the  allegation  that  that 
company  had  mined  out  all  of  the  vein  east  of  the 
compromise  strip,  and  were  insolvent,  possessed  no 
other  assets,  and  unless  it  was  enjoined,  the  St.  Louis 
company  would  not  be  able  to  satisfy  its  judgment 
when  obtained,  a  proceeding  which  seems  to  be  sanc- 
tioned by  the  Montana  Code  of  Civil  Procedure.'^ 
The  circuit  court  of  appeals  sustained  the  injunction 
on  the  theory  that  the  St.  Louis  company  would 
probably  recover  judgment,  the  supreme  court  of  the 
United  States  having  intimated  that  by  awarding  the 
ore  underneath  the  compromise  strip  to  the  Montana 
company,  the  right  of  the  St.  Louis  company  to  the  ore 
underneath  the  Nine  Hour  surface  beyond  that  strip 
was  not  affected.^" 

Subsequently  the  St.  Louis  company  recovered 
judgment  for  the  trespass,  which  judgment  was  af- 
firmed." 

The  supreme  court  of  California  applied  the  rule 
announced  by  the  supreme  court  of  the  United  States 
in  the  St.  Louis-Montana  case  in  Riley  v.  North  Star 

19  §   6643. 

20  Montana  M.  &  M.  Co.  v.  St.  Louis  M.  &  M.  Co.,  168  Fed.  514,  93 
C.   C.   A.   536. 

21  Montana  M.  Co.  v.   St.  Louis  M.   &  M.   Co.,   183   Fed.  51,   105   C. 
C.  A.  343. 


§  618  CONVEYANCES  AFFECTING  EXTRALATERAL  RIGHT.        1502 

M.  Co.,"  the  facts  of  which  were  somewhat  similar^ 
i.  e.,  an  agreement  to  reconvey  part  of  a  mining  claim 
after  patent  should  be  obtained,  to  avoid  the  necessity 
for  filing  an  adverse  claim.  The  agreement  and  deed 
in  the  Riley  case  contained  the  usual  habendum  clause,, 
inserting  in  a  blank  space  on  a  printed  form  the 
words  "mining  right."  The  court  held  that  this  con- 
veyed the  part  of  the  Massachusetts  Hill  vein  under- 
lying the  area  described  in  the  deed,  the  apex  of  the 
vein  being  admittedly  entirely  outside  of  the  property 
deeded.     Chief  Justice  Beatty  dissented. 

In  the  case  of  Bogart  v.  Amanda  Consolidated  G.  M. 
Co.,^^  an  agreement  to  convey  was  made  containing 
substantially  the  following  covenant: — 

The  first  parties  agree  within  ten  days  after  the 
issuance  of  the  patent  for  the  said  Bogart  lode  to 
convey  to  said  second  parties  ....  the  surface 
ground  included  within  the  conflict  ....  saving, 
excluding  and  excepting  from  said  deed  so  to  be 
made  the  Bogart  vein  or  lode,  ledge,  or  deposit 
wherever  the  same  may  be  found  to  cross  through  the 
conflicting  surface. 

In  an  application  for  a  decree  of  specific  perform- 
ance it  was  claimed  by  the  grantor  that  the  grantee  was 
entitled  to  a  deed  conveying  only  the  surface.  The 
court  held  that  the  grantee  was  entitled  to  a  convey- 
ance not  merely  of  the  surface  ground,  but  of  the 
underlying  minerals,  except  the  Bogart  vein,  the 
reservation  in  terms  of  the  Bogart  vein  being  an 
indication  that  the  parties  intended  that  everything- 
else  should  pass. 

The  question  of  the  effect  of  a  conveyance  of  a  part 
of  the  claim  containing  the  apex  of  the  vein  and  the 

22  152   Cal.  549,  93   Pac.  194,   197. 

23  32  Colo.  32,  74  Pac.   882,  883. 


1503         CONVEYANCE  OF  PART  OF  LOCATION.         §  618 

construction  of  such  conveyance  as  defining  tlie  extra- 
lateral  rights  of  grantor  and  grantee  was  given  full 
consideration  by  the  supreme  court  of  Montana  in  the 
case  of  Montana  Ore  Purchasing  Co.  v.  Boston  and 
Montana  Cons.  C.  &  S.  Co.,-*  the  facts  of  which  may  be 
best  explained  by  the  use  of  diagrams. 

Figure  123  represents  the  Johnstown  lode  claim  as 
patented,  containing  a  series  of  veins  substantially  as 
there  shown.  We  are  using  the  diagram  as  the  basis 
of  illustration  which  accompanied  the  opinion  of  the 
court  on  rehearing,  to  which  we  shall  later  refer. 
There  is  a  shght  difference  in  lettering  between  the 
two  diagrams. 


FiGUEE  123. 

By  the  application  of  the  rules  discussed  in  the  pre- 
ceding articles,  there  is  no  difficulty  in  ascertaining  the 
extent  of  the  extralateral  right  in  each  of  the  veins 
flowing  from  the  patent.     There  can  be  no  question 

24  27  Mont.  288,  70  Pac.  1114. 


§  618  CONVEYANCES  AFFECTING  EXTRALATERAL  RIGHT.        1504 

but  that  the  patentee  could  grant  any  part  of  the  claim 
or  of  its  extralateral  right  on  any  of  the  veins.  Par- 
ties contracting  with  reference  to  this  class  of  property 
may  fix  such  boundaries  as  they  choose,  and  if  they  do 
so  explicitly,  the  courts  are  relieved  from  embarrass- 
ment. It  is  only  where  they  fail  to  expressly  define  the 
extent  of  the  grant  that  the  courts  are  compelled  to 
ascertain  what  the  parties  intended  to  convey  by  refer- 
ence to  the  surrounding  circumstances  and  the  nature 
and  character  of  the  property  which  is  the  subject  of 
the  transaction. 

In  the  case  under  consideration,  the  parties  failed 
to  make  such  explicit  definition  of  the  extent  of  the 
grant.  After  the  issuance  of  the  patent  to  the  Johns- 
town, the  patentee  executed  a  deed  conveying  the  sur- 
face A-B-C-D-E-F,  which  surface  may  be  called  the 
''conveyed  portion,"  indicated  by  the  heavier  black 
lines.  This  subsequently  passed  by  mesne  convey- 
ances to  the  Montana  Ore  Purchasing  Company  under 
a  deed  which  described  it  by  metes  and  bounds,  omit- 
ting all  reference  to  metals,  ores,  quartz-bearing  rock, 
etc.,  frequently  found  in  such  conveyances. 

This  company  also  owned  the  Rarus,  a  senior  loca- 
tion coincident  with  the  conveyed  portion  of  the  Johns- 
town, to  the  extent  shown  on  figure  123.  The  patent, 
however,  having  been  issued  to  the  Johnstown,  the 
junior  claim  covering  the  area  in  conflict  apparently 
without  protest,  the  Rarus  as  a  separate  claim  lost  its 
identity  so  far  as  the  conflict  was  concerned.  The 
questions  at  issue,  therefore,  were  considered  without 
regard  to  any  right  under  the  Rarus  title.  The  Boston 
and  Montana  company  owned  the  unconveyed  portion 
of  the  Johnstown,  also  a  part  of  the  Pennsylvania  lying 
to  the  south  of  the  Johnstown.  The  controversy  in- 
volved the  ownership  of  the  ore  bodies  underneath  this 


1505         CONVEYANCE  OF  PART  OF  LOCATION.         §  618 

portion  of  the  Pennsylvania,  the  Montana  Ore  Purchas- 
ing Company  claiming  apex  rights  originating  within 
the  conveyed  portion  of  the  Johnstown.  The  case  in- 
volved the  position  and  course  of  the  Pennsylvania 
veins,  the  identity  of  the  veins,  an  alleged  union  in 
depth,  and  the  usual  complications  of  a  structural  char- 
acter. The  findings  of  fact  as  to  these  issues  sup- 
ported the  contention  of  the  Montana  Ore  Purchasing 
Company.  The  remaining  question  was  as  to  the 
extralateral  right  pertaining  to  that  company  by  virtue 
of  its  ownership  of  the  conveyed  portion  of  the  Johns- 
town. It  was  contended  by  that  company  that  its 
extralateral  right  should  be  defined  by  the  two  planes, 
— one  through  that  part  of  the  east  end-line  of  the 
Johnstown  claim,  extending  from  B  to  C  extended  in 
the  direction  of  Y, — the  other  through  the  west  end- 
line  of  the  part  conveyed,  F-E  extended  in  the  direction 
of  K.  The  trial  court  fixed  the  limit  toward  the  east 
by  passing  planes  through  the  points  where  the  veins 
depart  from  the  conveyed  portion — e.  g.,  R-S  and  0-P, 
parallel  to  the  east  end-line  of  the  Johnstown.  Toward 
the  west  the  limit  was  fixed  by  a  plane  passing  in  the 
direction  of  the  line  F-K  until  it  meets  the  plane  of  the 
west  end-line  of  the  Johnstown  produced,  and  thence 
in  the  direction  of  that  line  extended.  These  planes 
had  been  previously  adopted  by  Judge  De  Haven,  sit- 
ting as  circuit  judge,  on  an  injunction  application  in 
previous  litigation  between  the  same  parties." 

The  supreme  court  of  Montana,  however,  directed  a 
modification  of  the  decree  of  the  trial  court,  declining 
to  accept  Judge  De  Haven's  views.  It  directed  that 
the  decree  should  be  modified  so  as  to  fix  the  west  end- 

25  Boston  &  Montana  C.  &  S.  M.  Co.  v.  Montana  0.  P.  Co.,  89  Fed. 
629,   19  Morr.   Min.  Rep.   480. 
Lindley  on  M. — 95 


§  618  CONVEYANCES  AFFECTING  EXTRALATERAL  RIGHT.        1506 

planes  in  the  direction  of  the  line  L-M  parallel  to  the 
west  end-line  of  the  Johnstown  at  the  points  where 
the  different  veins  pass  through  the  line  F-E,  the  west 
boundary  of  the  conveyed  premises,  leaving  the  east 
end-line  planes  fixed  by  the  trial  court  undisturbed." 

In  the  course  of  its  opinion  the  court,  dealing  with 
this  class  of  conveyances,  expressed  its  views  as  fol- 
lows : — 

In  determining  the  effect  of  these  conveyances, 
regard  must  be  had  not  only  to  the  terms  employed 
in  them  and  the  surrounding  circumstances,  but  also 
to  the  character  of  the  property  granted.  An  ordi- 
nary conveyance  of  agricultural  land  or  of  town  lots 
describes  the  subject  of  the  grant  merely  by  metes 
and  bounds,  as  so  much  of  the  earth's  surface.  Yet, 
without  specific  mention,  the  grant  includes  the  right 
of  support  from  lands  adjacent  thereto,  as  well  as 
everything  above  and  beneath  the  surface,  unless,  by  ' 
apposite  words  contained  in  it,  some  reservation  is 
made.  These  rights,  conveyed  without  specific 
description,  are  not  mere  incidents,  but  are  substan- 
tive parts  of  that  which  is  described  to  the  extent 
that  without  them  the  subject  of  the  grant  is  not  sus- 
ceptible of  its  appropriate  use  and  enjoyment;  in 
other  words,  the  rights  conveyed  extend  far  beyond 
the  specific  words  of  description  contained  in  the 
deed.  Now,  a  patent  from  the  United  States  to  a 
quartz  claim  conveys  everything  which  is  granted  by 
an  ordinary  conveyance  between  private  parties,  and 
in  many  cases  much  more.     If  the  conditions  of  the 

28  In  the  case  of  Butte  &  Boston  M.  Co.  v.  Societe  Anonyme  des 
Mines  de  Lexington,  23  Mont.  177,  75  Am.  St.  Eep.  505,  58  Pac.  Ill, 
the  supreme  court  of  Montana  had  before  it  an  instruction  of  the 
court  which  followed  Judge  De  Haven's  opinion,  above  noted,  defining 
the  extralateral  right  boundary  by  a  vertical  plane  drawn  through  the 
conveyed  boundary,  regardless  of  the  course  of  the  original  end-line 
planes.  This  question,  however,  was  not  urged  before  the  supreme 
court,  and  its  opinion  does  not  refer  to  it  in  any  way  other  than  by  a 
mere  recital  of  the  instruction. 


1507         CONVEYANCE  OF  PART  OF  LOCATION.         §  618 

law  have  been  observed,  it  conveys,  in  addition  to 
what  is  found  beneath  the  surface  described  therein, 
all  the  veins,  to  their  utmost  depths,  the  tops,  or 
apices,  of  which  are  found  within  the  surface 
granted,  though  they  so  far  depart  from  the  perpen- 
dicular in  their  descent  into  the  earth  as  to  extend 
outside  of  the  vertical  side-lines  of  such  surface. 
As,  in  a  conveyance  of  agricultural  lands  or  town 
lots,  everything  is  presumed  to  be  granted  which  is 
necessary  to  the  enjoyment  of  the  species  of  prop- 
erty, without  specific  description,  so  by  a  deed  to  a 
quartz  claim,  or  a  definite  portion  thereof,  as  such, 
everything  necessary  to  the  proper  and  full  enjoy- 
ment of  that  species  of  property  will  be  presumed 
to  have  been  conveyed,  unless  there  be  employed 
specific  words  showing  the  intention  of  the  grantor 
to  make  some  reservation.  Extralateral  rights  are 
not  a  mere  incident  or  appurtenance,  but  a  substan- 
tial part  of  the  property  itself  which  is  the  subject 
of  the  grant.  They  are  not  susceptible  of  a  more 
definite  description  than  that  contained  in  the  stat- 
ute, which  the  patent  follows,  because  the  conditions 
beneath  the  surface  cannot  be  ascertained  prior  to 
the  issuance  of  patent;  but  we  apprehend  that  they 
would  pass  from  the  government  to  the  grantee 
under  a  patent  to  a  quartz  claim,  as  such,  by  virtue 
of  the  provisions  of  the  statute,  even  though  the 
patent  contained  no  express  reference  to  them  what- 
ever." 

Subsequently,  on  rehearing,"  the  court  modified  its 
original  opinion  by  fixing  the  western  limit  of  the  extra- 
lateral  right  of  the  Montana  Ore  Purchasing  Company 
on  all  the  veins  by  the  plane  E-Q — a  plane  parallel  to 
the  west  end-line  of  the  Johnstown  claim  applied  at 
the  southwest  corner  of  the  conveyed  tract.     This  in- 

27  Montana  0.  P.  Co.  v.  Boston  &  Montana  Cons.  C.  &  S.  M.  Co.,  27 
Mont.  288.  70  Pac.  1114,  1124. 

28  27  Mont.  536,  71  Pac.  1005. 


§  618  CONVEYANCES  AFFECTING  EXTRALATEBAL  RIGHT.        1508 

terpretation  gives  to  the  ore  purchasing  company  full 
intralimital  rights  within  the  conveyed  tract  and  an 
extralateral  right  commencing  at  E,  where  a  conven- 
tional apex  is  established  for  extralateral  purposes. 
Everything  west  of  that  plane  and  east  of  west  end- 
line  plane  of  the  Johnstown  remained  the  property  of 
the  Boston  and  Montana. 

The  case  of  Stinchfield  v.  Gillis,'^  cited  by  Judge  De 
Haven  in  his  opinion  above  referred  to,  and  commented 
on  by  the  supreme  court  of  Montana  in  the  case  be- 
tween the  Montana  Ore  Purchasing  Company  and  Bos- 
ton and  Montana  Company,  is  worthy  of  a  short  analy- 
sis, as  involving  some  of  the  elements  under  discussion. 

The  facts  may  be  illustrated  by  figure  124,  a  longi- 
tudinal section,  the  vertical  bounding  plane  between 
the  Carrington  and  the  Pine  Tree  being  represented 
by  the  dotted  line  B.  The  other  details  shown  on  the 
figure  are  self-explanatory.  The  facts,  so  far  as  they 
presently  concern  us,  were  briefly  as  follows : 

One  Carrington  was  originally  in  possession  of  a 
certain  mining  claim,  consisting  of  a  tract  of  land  about 
seven  hundred  and  fifty  feet  in  length  by  about  four 
hundred  and  fifty  feet  in  width.  After  leaving  the  sec- 
tion of  the  country  where  this  property  was  situated, 
he  transferred  the  same  to  defendant  Gillis.  However, 
no  valid  location  as  required  by  the  laws  of  the  United 
States  had  ever  been  made. 

On  January  17, 1886,  Gillis,  by  bargain  and  sale  deed, 
conveyed  to  plaintiff  Stinchfield  a  portion  of  this  claim, 
being  a  strip  of  land  one  hundred  and  seventy-one  feet 
in  width  on  the  eastern  side  thereof. 

The  strip  thus  conveyed  became  known  as  the  Pine 
Tree  mine,  and  contained  two  veins,  the  Pine  Tree  vein 

29  96   Cal.  33,  30  Pac.   b39,   17   Morr.   Min.  Rep.  497;    107  Cal.  84, 
40  Pae.  98. 


1509 


COXVEYANCE  OF  PART  OF  LOCATION. 


618 


(which  may  be  omitted  from  consideration  here),  dip- 
ping to  the  east,  and  the  West  vein,  dipping  to  the  west. 
On  the  remainder  of  the  Carrington  claim  there  were 
three  systems  of  veins,  all  dipping  to  the  east,  known 
respectively  as  the  Carrington  vein,  the  Criss  vein,  and 
the  Rice  vein.  The  Rice  vein  was  composed  of  three 
small  veins  running  parallel  and  in  close  proximity. 
Neither  the  Carrington  nor  Criss  veins  are  shown 
on  the  diagram,  as  they  are  not  necessary  to  a  proper 


i 


Figure  124. 

understanding  of  the  case.  The  controversy  arose 
over  the  ore  bodies  found  at  the  intersection  of  the 
West  vein  with  the  Rice  vein. 

The  veins  in  both  claims  run  on  a  northwesterly  and 
southeasterly  direction,  with  the  exception  of  the  West 
vein,  which  runs  north  and  south,  and  all  dip  to  the 


§  618  CONVEYANCES  AFFECTING  EXTRALATERAL  RIGHT.        1510 

east,  with  the  exception  of  the  "West,  which  dips  to  the 
west,  and  crosses  the  veins  from  the  Carrington  claim 
at  nearly  right  angles.  The  only  place  where  gold  oc- 
curs is  at  these  crossings. 

On  the  day  following  the  conveyance  of  the  Pine 
Tree  mine  Gillis  located  according  to  law  the  remainder 
of  the  Carrington  claim.  Two  days  after  Gillis  had 
made  this  location  plaintiff  Stinchfield  also  relocated 
the  Pine  Tree  mine. 

Subsequently,  while  following  the  Rice  vein  on  its 
dip  under  the  Pine  Tree  ground,  the  tenants  of  the 
defendant  Gillis  encountered  the  West  vein  at  its  inter- 
section with  the  Rice  vein  at  the  point  marked  on  figure 
124  ''Ore  bodies  in  dispute."  They  continued  work 
and  extracted  all  the  gold  to  be  found  within  the  space 
of  such  intersection.  Later,  plaintiff  Stinchfield,  while 
working  on  the  West  vein,  broke  into  defendant's  works 
at  the  point  of  intersection  and  found  that  defendant 
had  already  extracted  all  the  gold  in  that  space.  He 
then  brought  this  action  for  the  value  of  the  gold  al- 
leged to  have  been  removed  from  the  said  space  of 
intersection. 

Gillis'  main  reliance  to  defeat  Stinchfield 's  claim 
was  based  upon  his  assertion  that  the  Carrington  was 
a  prior  location,  and  that  he  had  a  right  to  the  ore 
within  the  space  of  intersection  of  the  two  veins,  under 
section  twenty-three  hundred  and  thirty-six  of  the 
Revised  Statutes.  The  court  held  that  the  apex  being 
within  the  Pine  Tree  and  the  ore  bodies  in  dispute 
being  underneath  the  surface  of  that  claim,  Stinchfield 
was  entitled  to  them  under  his  conveyance;  that  by 
such  conveyance  Gillis  was  estopped  from  asserting 
that  the  original  claim  was  not  properly  located,  and 
from  setting  up  any  title  by  virtue  of  the  subsequent 
location  of  the  Carrington  which  would  impair  the  legal 


1511  CONVEYANCE    OF    ADJOINING    GROUND.  §  618a 

effect  of  the  prior  conveyance  of  the  Pine  Tree ;  that 
as  against  the  conveyance  of  the  tract  including  the 
apex  of  the  Pine  Tree  vein,  Gillis  could  not  claim  the 
benefit  of  the  section  of  the  Revised  Statutes  relating 
to  veins  uniting  in  depth.  The  supreme  court  of  Cali- 
fornia did  not  feel  called  upon  to  determine  whether 
Stinchfield  would  have  been  entitled  to  follow  the  West 
vein  into  the  ground  retained  by  Gillis  or  whether  Gil- 
lis would  have  been  entitled  to  follow  the  Pine  Tree 
vein  beyond  the  intersection  underneath  the  Pine  Tree, 
such  question  not  being  involved  in  the  appeal.  But 
in  the  course  of  its  opinion  it  said : — 

We  concede  that  when  mining  ground  is  conveyed 
by  deed,  without  express  limitation,  the  grantee  takes 
subject  to  the  characteristics  of  mining  property 
given  to  it  by  prevailing  customs  and  laws  and  not 
with  the  absolute  dominion  which  flows  from  a  con- 
veyance in  fee  of  ordinary  land.^° 

This  principle  is  undoubtedly  recognized  in  all  the 
cases  heretofore  reviewed.  Its  application  to  indi- 
vidual cases  must,  of  course,  depend  largely  upon  the 
language  of  the  conveyance  in  question,  the  situation 
of  the  parties,  the  surrounding  circumstances,  and  the 
nature  and  character  of  the  property. 

§  618a.  Effect  on  extralateral  right  where  the  owner 
of  the  location  conveys  the  adjoining  ground  into 
which  the  vein  penetrates  on  its  downward  course. — 
We  may  assume,  for  the  purpose  of  discussing  the 
effect  on  the  extralateral  right  where  the  owner  of  the 
location  conveys  the  adjoining  ground  into  which  the 
vein  penetrates  on  its  downward  course,  the  facts  dis- 
closed in  the  case  of  the  Central  Eureka  Min.  Co.  v. 
East  Central  Eureka  Min.  Co.,  which  are  illustrated 

80  107  Cal.  84,  90,  40  Pac.  98,  99. 


§  618a     conveyances  affecting  extralateral  right.     1512 

on  figure  53  (page  1272  of  this  treatise).     The  title 
of  the  Central  Eureka  to  the  Summit  quartz  mine  is 
evidenced  by  a  lode  patent  issued  under  the  act  of 
1872.     The  vein  on  its  downward  course  passes  under- 
neath the  Toman  ranch,  patented  under  the  home- 
stead laws,  the  title  being  junior  in  point  of  time  to 
the  title  of  the  Summit  mine.     The  Central  Eureka, 
being  the  owner  of  the  Summit,  at  one  time  entered 
into  a  contract  to  purchase  the  Toman  ranch,  but  sub- 
sequently abandoned  it,  and  to  clear  the  records  exe- 
cuted a  quitclaim  deed  to  the  Tomans  of  all  that  part 
of  the  Toman  ranch  lying  east  of  the  patented  mining 
ground  known  as  the  Summit  mine.     The  deed  was  in 
the  ordinary  form  and  contained  no  reservations.     It 
was  contended  on  the  part  of  the  agricultural  owners 
that  the  deed  was  to  be  given  its  common-law  effect, 
and  construed  so  as  to  convey  all  that  part  of  the  Sum- 
mit vein  which  on  its  downward  course  is  found  under- 
neath the  agricultural  surface.     The  trial  court.  Judge 
R.  C.  Rust,  superior  judge  of  Amador  county,  Cali- 
fornia, presiding,  held  that  the  part  of  the  Summit  vein 
in  controversy  belonged   exclusively  to  the   Summit 
quartz  mine,  and  did  not  pass  by  a  conveyance  of  the 
Toman  ranch. 

In  this  ruling  the  trial  court  was  sustained  by  the 
supreme  court  of  California  ^^  and  by  the  supreme 
court  of  the  United  States." 

The  contention  of  the  Central  Eureka,  which  was 
sustained  by  the  courts,  may  be  briefly  outlined:  The 
description  in  the  conveyance  was  of  that  portion  of 
the  Toman  ranch  "lying  east  of  that  certain  patented 

31  Central  Eureka  Min.  Co.  v.  East  Central  Eureka  Min.  Co.,  146 
Cal.   147,  79  Pae.  834,  9  L.  R.  A.,  N.  S.,  940. 

32  East  Central  Eureka  Min.  Co.  v.  Central  Eureka  Min.  Co.,  204 
U.  S.  266,  27  Sup.  Ct.  Eep.  258,  51  L.  ed.  476. 


1513  CONVEYANCE   OF   ADJOINING   GROUND.  §  618a 

mining  ground  known  as  the  Summit  quartz  mine." 
This  necessarily  excludes  the  Summit  quartz  mine 
and  everj^thing  pertaining  to  the  "patented  mining 
ground."  The  grant  to  the  Summit  patentee  was  of 
the  vein  having  its  top,  or  apex,  within  the  claim 
throughout  its  entire  depth  between  the  end-line 
planes.  The  grant  of  the  extralateral  right  follows 
from  the  statute,  whether  effect  be  given  to  the  express 
grant  of  that  right  in  the  patent  or  not,"  and  would 
follow  in  the  absence  of  any  specific  grant  of  such 
right  embodied  in  the  patent." 

The  underground  segment  of  the  vein  within  the 
Summit  end-line  planes  lying  underneath  the  surface 
of  the  Toman  ranch  would  pass  by  a  conveyance  of  the 
Summit  quartz  mine  by  name  or  by  description  by 
metes  and  bounds.  This  principle  finds  ample  author- 
ity in  the  cases  cited  in  the  preceding  section.  As  a 
corollary  to  this  principle,  no  part  of  the  extralateral 
right  on  a  vein  acquired  through  a  federal  mining  loca- 
tion or  patent  would  be  conveyed  by  a  deed  simply  de- 
scribing land  adjoining  into  which  the  vein  pene- 
trated.^® 

As  appears  from  the  adjudicated  cases,  this  is  true 
where  the  contiguous  land  conveyed  is  the  subject  of 
patent  under  the  mining  law;  a  fortiori,  should  it  be 
true  when  land  patented  under  the  agricultural  laws  is 
conveyed.  To  illustrate :  Among  the  numerous  contro- 
versies arising  out  of  conflicting  locations  in  the  Coeur 

83  Doe  V.  Waterloo  M.  Co.,  54  Fed.  935,  941. 

8*  Montana  0.  P.  Co.  v.  Boston  &  Montana  Cons.  C.  &  S.  M.  Co., 
27  Mont.  288,  70  Pac.  1114,  1124;  S.  C,  on  rehearing,  27  Mont.  536, 
71  Pac.  1005. 

35  This  principle  is  restated  and  the  doctrine  approved,  but  case 
differentiated.  Kiley  v.  North  Star  Min.  Co.,  152  Cal.  549,  93  Pac. 
194,  197. 


§  618a     conveyances  affecting  extralateral  right.      1514 

d'Alenes,  Idalio,  was  one  involving  tlie  respective 
rights  of  four  mining  claims,  the  relative  situation  of 
which  is  shown  on  figure  125. 

N 


Figure  125. 
Priorities  had  been  adjudicated  as  follows:  The  Last 
Chance  was  first,  the  Tyler  second.  The  Last  Chance 
Fraction  and  Republican  Fraction  were  junior  to  the 
first  two.  The  lode  passed  through  the  two  side-lines 
of  the  Last  Chance,  making  these  lines  the  true  end- 
lines  of  the  claim.  On  its  downward  course,  between 
the  extralateral-right  planes  of  the  Tyler  and  Last 
Chance,  the  vein  passed  underneath  the  surface  of  the 
Last  Chance  Fraction  and  Republican  Fraction,  held 


1515  CONVEYANCE   OF    ADJOINING    GROUND.  §  618a 

in  different  ownership  from  either  the  Tyler  or  Last 
Chance. 

The  extralateral  right  of  the  Tyler  was  adjudicated 
to  be  southward  within  its  end-line  planes,  but  by  rea- 
son of  the  priority  of  the  Last  Chance  over  the  Tyler, 
the  Tyler  company  lost  so  much  of  the  vein  under- 
ground as  was  found  within  the  Last  Chance  end-lines, 
and  these  lines  produced  westwardly.  At  one  stage  of 
the  litigation  the  Last  Chance  company  filed  a  pleading 
by  which  it  disclaimed  all  right,  title,  or  interest  in  or 
to  the  Last  Chance  Fraction  and  the  Republican  Frac- 
tion. Subsequently  the  Tyler  company,  asserting  its 
right  to  the  vein  within  its  end-line  planes  underneath 
the  surface  of  the  Republican  and  Last  Chance  Frac- 
tions, and  within  the  Last  Chance  extralateral-right 
planes,  contended  that  by  this  disclaimer  the  Last 
Chance  company  was  estopped  from  claiming  any  part 
of  the  vein  underneath  the  two  fractional  claims,  not- 
withstanding its  priority  and  apex  ownership  in  the 
Last  Chance  claim.  Touching  this  contention,  the  cir- 
cuit court  of  appeals  said: — 

The  suggestion  of  counsel  for  the  appellant  that 
the  Last  Chance  company,  by  its  pleadings,  dis- 
claimed all  interest  in  the  vein  in  question  under- 
neath the  surface  of  the  Republican  and  Last  Chance 
Fraction  claims  is  not  supported  by  the  record.  The 
Last  Chance  company  did  disclaim  any  interest  in 
either  of  these  claims,  but,  inasmuch  as  the  vein  in 
question  has  its  apex  within  the  surface  lines  of  the 
Last  Chance  location,  and  on  its  dip  under  the  true 
side-lines  of  the  Last  Chance  location  passes  under 
the  surface  of  the  Republican  and  Last  Chance  Frac- 
tion claims,  it  is  in  its  descent  as  much  a  part  of  the 
Last  Chance  location  as  if  entirely  within  its  surface 
lines.  It  constitutes  no  part  of  the  Republican  or 
Last  Chance  Fraction  claims,  and  therefore,  in  dis- 
claiming  any   interest   in   these   claims,   the    Last 


§  618b     conveyances  affecting  extralatebal  right.     1516 

Cliance  company  did  not  thereby  disclaim  any  inter- 
est in  the  vein.^® 

Suppose  the  Last  Chance  company  in  the  case  above 
cited  had  owned  the  three  claims, — the  Last  Chance, 
the  Last  Chance  Fraction,  and  the  Republican  Frac- 
tion,— and  had  conveyed  the  two  last  named,  without 
reserving  in  terms  the  extralateral  right  pertaining  to 
the  original  Last  Chance,  could  it  be  contended  that  it 
lost  the  Last  Chance  extralateral  right  which  accrued 
to  it  by  virtue  of  the  ownership  of  the  apex  within  the 
Last  Chance  surface?     We  think  not. 

It  is  our  view  that  the  application  of  the  principles 
upheld  by  the  courts  in  the  cases  noted  in  the  preced- 
ing sections  (notably  Montana  M.  Co.  v.  St.  Tjouis  M. 
and  M.  Co.^^  and  Montana  Ore  Purchasing  Co.  v.  Bos- 
ton and  Montana  Cons.  C.  &  S.  M.  Co.^*)  would  result 
in  the  determination  that  in  cases  like  the  Central 
Eureka-Toman  case,  the  conveyance  of  the  adjoining 
land  overlying  the  downward  course  of  the  vein,  would 
not  carry  the  underlying  vein,  unless  the  language  of 
the  deed  expressly  provided  that  it  should. 

§  618b.  Effect  of  conveyance  of  segregated  parts  of 
unpatented  claims. — Mining  claims  properly  located 
frequently  become  the  subject  of  division  or  segrega- 
tion and  sale.  Under  miners'  rules  and  customs,  and 
under  the  act  of  1866,  when  the  lode  was  the  principal 
thing  located  and  the  surface  ground  a  mere  incident, 
it  was  a  matter  of  common  occurrence  for  locators  by 
conveyance  to  segregate  among  themselves,  by  measure- 
ments along  the  vein,  the  number  of  feet  to  which  each 

36  Tyler  M.  Co.  v.  Last  Chance  M.  Co.,  90  Fed.  15,  21,  32  C.  C.  A. 
498. 

37  102  Fed.  430,  42  C.  C.  A.  415,  20  Morr.  Min,  Rep.  507. 
88  27  Mont.  288,  70  Pac,  1114. 


1517  SEGREGATED  PARTS   OF  UNPATENTED    CLAIMS.         §  618b 

was  entitled,  thus  severing  the  unity  of  title  and  cre- 
ating an  individual  estate  in  each  segregated  portion. 
If  patents  were  applied  for,  each  made  application  for 
his  segregated  portion  of  the  same  as  if  it  had  been 
an  original  location.  The  change  in  the  method  of 
location  inaugurated  by  the  act  of  1872,  the  distin- 
guishing feature  of  which  was  the  location  of  a  surface 
containing  or  supposed  to  contain  a  lode,  made  it  dif- 
ficult to  convey  segregated  parts  and  preserve  the  in- 
tegrity of  each  part. 

In  the  case  of  Little  Pittsburg  Cons.  Min.  Co.  v. 
Amie,''  Judge  Hallett  ruled  that  a  locator  might  sell 
or   otherwise    dispose  of  that  portion  of  his  location 
which  covers  his  discovery  and  workings  without  af- 
fecting the  right  to  the  remainder.     This  might  be 
true  under  some  circumstances.     If    the    unconveyed 
portion  contained  a  part  of  the  apex  of  the  vein  so 
that  it  might  become  the  subject  of  a  separate  appli- 
cation for  patent,  the  right  to  the  unconveyed  portion 
might  be  defended  on  the  theory  of  two  separate  loca- 
tions of  diminished  area,  each  possessing  all  the  attri- 
butes of  a  separate  and  distinct  location.     Certainly 
with  a  severance  of  unity  of  title  one  patent  could  not 
issue  for  both  parts.     Each  part  would  have  to  respond 
to  the  requirements  of  the  law  as  to  discovery,  patent 
work  and  other  essentials.     Where,  however,  the  un- 
conveyed part  contains  neither  discovery  nor  workings, 
patent  could  not  issue  for  such  part.""     Loss  of  discov- 
ery results  in  loss  of  location.     New  discovery  in  the 
unsurveyed  part  will  alone  save  it  from  reverting  to 
the  public  domain.    Where  there  has  been  a  severance 
of  a  mining  claim,  entry  may  be  allowed  and  patent 

39  17   Fed.   57,   58,  5   McCrary,   298,   cited   in   Tonopah   &   Salt  Lake 
Min.  Co.  V.   Tonopah  Min,  Co.,  125  Fed.  408,  414. 

40  Ante,  §  338. 


§  618b     conveyances  affecting  extralateral  right.     1518 

issued  on  the  part  of  the  claim  within  which  discovery 
was  made  and  as  to  which  all  the  requirements  of  the 
mining  laws  have  been  met,  without  regard  to  the  re- 
mainder of  the  claim."  Possible  exceptions  to  this 
rule  may  be  noted  where  a  lode  claim  as  located  is  in- 
tersected by  a  prior  claim.  In  many  such  instances 
the  right  to  the  net  area  of  the  claim,  deducting  the 
conflict  area,  is  sustained.  We  are  now  speaking,  how- 
ever, of  voluntary  conveyances  of  a  location  by  the  lo- 
cator or  his  successors  in  estate.  If  we  can  assume 
a  case  of  a  partition  of  a  lode  claim  into  two  distinct 
tracts  with  different  ownership,  annual  work  on  one 
tract  would  not  inure  to  the  benefit  of  the  other,  in 
the  absence  of  an  agreement  to  such  effect,  because 
the  unity  of  title  has  been  destroyed. 

In  Zeckendorf  v.  Hutchinson,"  six  persons  located 
a  lode  claim,  and  after  location,  the  interests  of  the 
locators  were  segregated,  so  that  each  had  assigned 
to  him  a  specific  part  of  the  area  covered  by  the  loca- 
tion. At  the  time  of  location,  the  law  of  New  Mexico 
required  the  sinking  of  a  discoverj^  shaft.  One  such 
shaft  was  sunk,  whether  before  or  after  the  segrega- 
tion does  not  clearly  appear,  although  the  inference 
is  that  the  segregation  preceded  the  sinking  of  the 
shaft. 

In  an  action  brought  by  the  vendee^  of  the  owner 
of  one  of  the  segregated  tracts  to  obtain  an  injunction 
against  a  third  party  from  removing  ore  from  the 
tract,  the  court  held  that  the  bill  of  complaint  was  fa- 
tally defective  in  not  averring  the  sinking  of  a  dis- 
covery shaft  on  the  segregated  tract  involved.  This 
ruling,  it  would  seem,  was  tantamount  to  a  determina- 
tion that  the  segregation  resulted  in  such  a  severance 

41  Pittsburg  Nevada  Min.  Co.,  39  L.  D.  523. 

42  1  N.  M.  476,  9  Morr.  Min.  Rep.  483. 


1519  SEGREGATED   PARTS   OF   UNPATENTED    CLAIMS.         §  618b 

of  title  that  the  sinking  of  the  discovery  shaft  on  one 
of  the  tracts  did  not  inure  to  the  benefit  of  the  others, 
and  that  a  separate  shaft  was  essential  for  each  segre- 
gated tract.  In  other  words,  by  this  severance  of  title 
each  tract  became  in  effect  a  separate  and  distinct 
claim  requiring  the  sinking  of  a  separate  shaft  on  each 
one. 

In  the  early  history  of  mining  camps  the  surface 
ground  of  lode  claims  is  disposed  of  for  residence  or 
business  purposes,  usually  under  executory  contracts, 
the  mineral  rights  being  reserved.  This  does  not  de- 
stroy the  unity  of  title  so  as  to  affect  the  patenting  of 
the  entire  area  of  the  claim.  In  such  cases  the  patent 
when  issued  will  inure  to  the  benefit  of  the  purchaser 
of  the  surface,  the  estate  of  the  patentee  being  dimin- 
ished to  that  extent. 

Some  interesting  questions  have  arisen  in  the  oil  re- 
gions of  Central  California,  where  locations  of  oil 
placers  were  made  without  discovery,  the  located  area 
being  subsequently  subdivided  and  sold  and  discovery 
thereafter  made. 

In  Miller  v.  Chrisman,^^  eight  persons  located  one 
hundred  and  sixty  acres  of  oil  placer  ground,  and  prior 
to  discovery  they  conveyed  to  Miller.  Shortly  there- 
after he  executed  what  purported  to  be  an  abandonment 
of  his  rights  under  this  location  and  on  the  same  day 
made  a  location  on  behalf  of  himself  and  seven  asso- 
ciates. Thereafter,  and  prior  to  discovery.  Miller's 
associates  and  colocators  conveyed  their  interests  to 
him.  Subsequently  Miller  made  discovery.  It  was 
held  that  this  discovery  validated  and  perfected  the 
entire  one  hundred  and  sixty  acre  location,  as  against 
others  who,  in  the  meanwhile,  had  attempted  to  locate 
without  discovery.    The  transfer  by  his  associates  to 

"  140  Cal.  440,  98  Am.  St.  Rep.  63,  73  Pac.  1083,  74  Pac.  444. 


§  618b     conveyances  atfecting  extralateral  right.     1520 

Miller  was  held  to  be  a  conveyance  of  a  right  of  prop- 
erty flowing  from  a  valid  possession,  and  vested  in 
Miller  the  right  to  perfect  a  location.  When  perfected, 
he  became  the  owner  of  the  entire  location.  There  was 
no  destruction  of  the  unity  of  the  title. 

In  Weed  v.  Snook,"  an  association  of  persons  located 
eighty  acres  of  placer  lands  and  prior  to  discovery 
conveyed  ten  acres  to  the  Lion  Oil  Company,  which 
company  in  due  time  made  a  discovery.  This  discov- 
ery, though  made  after  conveyance  and  segregation 
of  title,  completed  and  validated  the  eighty  acre  loca- 
tion. In  other  words,  the  discovery  by  the  grantee  on 
the  ten  acre  tract  inured  to  the  benefit  of  the  grantor, 
who  retained  the  other  seventy  acres.  The  opinion 
in  the  case  does  not  suggest  the  existence  of  any  agree- 
ment or  understanding  between  the  two  parties  to  the 
conveyance  whereby  a  discoveiy,  when  made  by  the 
grantee,  should  inure  to  the  benefit  of  the  unconveyed 
part  of  the  tract  retained  by  the  grantor,  although 
in  the  subsequent  case  next  discussed  the  court  said 
that  its  opinion  in  the  Weed-Snook  case  was  to  be  un- 
derstood "in  this  sense." 

In  Merced  Oil  Min.  Co.  v.  Patterson '°  eight  associates 
located  an  oil  placer  of  one  hundred  and  sixty  acres. 
Before  any  discovery  of  oil  was  made  the  associates 
conveyed  in  severalty  forty  acres  to  the  Merced  Oil 
Company  and  a  like  number  of  acres  to  one  Castle. 
The  Merced  Oil  Company  subsequently  discovered  oil, 
but  Castle  made  no  discovery.  Castle  and  the  oil  com- 
pany joined  in  an  action  against  third  parties  to  en- 
join trespass,  the  third  parties  claiming  title  under 
later  locations. 

44  144  Cal.  439,   77  Pac.   1023. 

45  153  Cal.  624,  96  Pac.  90. 


1521  SEGREGATED  PARTS   OF  UNPATENTED    CLAIMS.         §  618b 

Two  questions  were  submitted  to  the  supreme  court 
for  its  consideration: — 

(A)  Did  the  discover}^  of  the  Merced  Oil  Company 
on  its  tract  inure  to  the  benefit  of  Castle's  forty,  thus 
relieving  him  from  making  a  separate  discovery! 

(B)  Did  the  annual  labor  of  one  hundred  dollars 
done  upon  any  one  of  the  segregated  tracts  inure  to 
the  benefit  of  the  other  tracts,  relieving  the  respective 
owners  from  the  necessity  of  performing  labor  to  the 
statutory  amount? 

The  court,  in  deciding  both  questions  in  the  negative, 
held  that  the  conveyance,  being  absolute  on  its  face, 
was  in  effect  an  abandonment,  and  had  the  effect  prac- 
tically of  creating  as  many  separate  locations  as  there 
were  conveyances. 

It  was  conceded  by  the  court  that  an  agreement 
might  be  made  between  grantor  and  grantee  by  which 
discovery  made  or  work  done  on  any  one  tract  should 
inure  to  the  benefit  of  the  others.  But,  in  the  absence 
of  such  agreement,  either  expressed  in  the  instrument 
of  conveyance  or  proved  by  parol,  there  was  no  such 
community  of  interest  which  would  enable  the  owner 
of  one  segregated  tract  to  claim  the  benefit  of  what 
was  done  on  another. 

On  subsequent  appeal  in  the  same  case  after  retrial 
it  appeared  fortuitously  that  such  a  contract  existed, 
and  the  principle  was  reaffirmed.''® 

Segregations  of  this  character  are  rare,  as  the  unity 
of  title  and  possession  is  usually  preserved  until  after 
patent  has  been  issued.  Transfers  of  fractions  of 
claims  are  frequently  made  in  cases  of  conflicting 
areas,  where  the  conveyed  tract  is  either  covered  by 
a  new  location  or  is  recognized  as  lapsing  by  virtue  of 

46  Merced  Oil  Co.  v.  Patterson,  162  Cal.  358,  122  Pac.  950,  952, 
Lindley  on  M. — 96 


§  61Sb    conveyances  affecting  extralateral  right.     1522 

a  conceded  priority  into  the  boundaries  of  another 
previously  existing  location.  In  cases  of  this  charac- 
ter, the  questions  here  discussed  do  not  arise. 

The  application  of  the  doctrine  of  Merced  Oil  Co.  v. 
Patterson,  recognizing  the  right  of  grantor  and  grantee 
to  deal  with  this  question  of  discovery  by  agreement 
after  segregation  of  title,  will  meet  with  some  difficulty, 
if  patents  are  to  be  applied  for,  and  no  discovery  is 
shown  except  in  land  which  at  the  time  of  the  patent 
application  does  not  belong  to  the  patent  applicant, 
unless  the  locations  fall  within  the  curative  statute 
hereafter  referred  to.  It  is  difficult  to  overcome  legal 
requirements  by  contracts  between  individuals. 

The  land  department  steadfastly  declined  to  follow 
the  rule  announced  in  the  California  cases,  holding  that 
a  subsequent  discovery  by  a  grantee  only  entitled  him 
to  hold  the  unit  of  an  individual  placer  location — i.  e., 
twenty  acres. *^ 

Congress  thereupon  intervened,  and  on  March  2, 
1911,  passed  an  act  entitled  ''An  act  to  protect  the 
locators  in  good  faith  of  oil  and  gas  land  who  shall 
have  effected  an  actual  discovery  of  oil  or  gas  on  the 
public  lands  of  the  United  States,  or  other  successors 
in  interest,"**  which  is  as  follows: — 

That  in  no  case  shall  patent  be  denied  to  or  for  any 
lands  heretofore  located  or  claimed  under  the  min- 
ing laws  of  the  United  States  containing  petroleum, 
mineral  oil  or  gas  solely  because  of  any  transfer  or 
assignment  thereof  or  of  any  interests  therein  by 
the  original  locator  or  locators,  or  any  of  them,  to 
any  qualified  persons  or  person  or  corporation  prior 
to  discovery  of  oil  or  gas  therein,  but  if  such  claim 
is  in  all  other  respects   valid   and   regular,   patent 

47  In  re  Yard,  38  L.  D.  59 ;  Bakersfield  Fuel  &  Oil  Co.,  39  L.  D.  460. 
"  36    Stats,    at   Large,    1015;    Comp.    Stata.    (Supp.    1911),   p.    612; 
1  Fed.   Stats.  Ann.    (Supp.   1912),  p.   271. 


1523  SEGREGATED    PARTS    OF    UNPATENTED    CLAIMS.       §  618b 

therefor  not  exceeding  one  hundred  and  sixty  acres 
in  any  one  claim  shall  issue  to  the  holder  or  holders 
thereof,  as  in  other  cases.  Provided,  however,  that 
such  lands  were  not  at  the  time  of  the  inception  of 
the  development  on  or  under  such  claim  withdrawn 
from  mineral  entry. 

It  will  be  noted  that  this  is  purely  a  curative  statute, 
not  operating  prospectively,*^  and  is  limited  to  oil  and 
gas  locations  made  prior  to  the  passage  of  the  act  on 
lands  not  withdrawn  from  mineral  entry. ^° 

«  See  p.  66,  Circ.  No.  187,  U.  S.  Min.  Laws  &  Reg.,  ed.  Nov.  6, 
1912. 

50  As  to  the  withdrawals  of  this  class  of  lands  by  executive  order, 
see  discussion,  ante,  §§  200a,  200b,  200c. 


CHAPTER  IV. 

THE    NATUEE    AND    EXTENT    OF    PROPERTY    RIGHTS    CON- 
FERRED BY  PLACER  LOCATIONS. 

§  619.     Eights    conferred   bj   placer   locations   as    compared   with   lode 
locations. 

§  619.  Rights  conferred  by  placer  locations  as  com- 
pared with  lode  locations. — The  rights  conferred  by  a 
valid  placer  location  differ  in  degree  from  those  in- 
uring to  a  lode  locator,  owing  to  the  difference  in  the 
nature  of  the  thing  appropriated. 

That  a  vein  or  lode,  descending,  as  it  often  does,  to 
great  depths,  may  contain  more  mineral  than  can  be 
obtained  from  the  loose  deposits  which  are  secured 
by  placer  mining  within  the  same  limits  of  surface 
area,  naturally  gives  to  the  surface  area  a  higher 
value  in  the  one  case  than  the  other,  and  that  con- 
gress appreciated  this  difference  is  shown  by  the  dif- 
ferent prices  charged  for  the  surface  under  the  two 
conditions 

A  placer  location  is  not  a  location  of  veins  or  lodes 
underneath  the  surface,  but  is  simply  a  claim  of  a 
tract  or  parcel  of  ground  for  the  sake  of  loose  de- 
posits of  mineral  upon  or  near  the  surface.^ 

While  the  estate  is  of  the  same  dignity  and  is  held 
by  the  same  tenure,  there  are  no  extralimital  privileges 
accruing  to  a  placer  locator,  and  the  intralimital  rights 
may,  under  certain  conditions,  be  abridged.  Veins 
having  their  apices  within  the  limits  of  a  placer  claim, 
whose  existence  is  known  prior  to  the  filing  of  an  ap- 
plication for  placer  patent,  do  not  vest  in  the  placer 
claimant  by  virtue  of  his  placer  location.     Should  he 

1  Clipper  Min.  Co.  v.  Eli  Min.  &  Land  Co.,  194  U.  S.  220,  228, 
24  Sup.   Ct.   Rep.   632,  48   L.   ed.   944. 

(1524) 


1525  RIGHTS    CONFERRED    BY    PLACER    LOCATIONS.  §  619 

fail  to  discover  and  claim  such  veins,  they  may  when- 
ever such  discovery  is  made  thereon  be  located  by 
others  (provided  entry  on  the  placer  can  be  made  peace- 
ably),' thus  subjecting  the  placer  claim  to  diminution 
to  the  extent  of  a  surface  width  of  twenty-five  feet  on 
each  side  of  the  center  of  the  vein.^  The  subject  of 
locating  lodes  within  placers  has  been  fully  presented 
in  preceding  articles,"  and  repetition  is  unneces- 
sary. With  the  exception  of  the  right  to  locate  known 
veins,  which  may  be  exercised  by  strangers  entering 
peaceably,  the  placer  claimant  has  the  same  dominion 
over  the  located  surface  as  a  lode  locator  has  over  the 
surface  of  his  lode  claim ;  and  as  in  case  of  lode  claims, 
the  placer  boundaries  underneath  the  surface  may  be 
invaded  by  the  proprietor  of  a  vein,  or  lode,  having  its 
apex  outside  of  the  placer  boundaries,  in  the  exercise 
of  the  extralateral  right.' 

It  is  unnecessary  to  assert  that  neither  a  placer  loca- 
tion nor  a  placer  patent,  as  such,  will  confer  extra- 
lateral  rights  as  to  any  lodes,  the  tops,  or  apices  of 
which  are  found  within  the  limits  of  a  placer  claim.^ 
In  order  to  confer  such  rights,  the  lode  must  be  located 
the  same  as  if  it  were  situated  elsewhere  upon  the 
public  domain.  In  such  case,  the  extralateral  right  as 
to  the  lode  is  defined  by  the  lode  boundaries.,  which  may 
or  may  not  be  coincident  with  some  of  the  placer  bound- 
aries. Should  veins  or  lodes  having  their  apices 
within  the  limits  of  a  placer  claim  be  discovered  after 

2  Clipper  Min.  Co.  v.  Eli  Min.  &  Land  Co.j  IW  U.  S.  220,  230,  231, 
24  Sup.  Ct.  Kep.  632,  4S  L.  gd.  944. 

3  Id.,  p.   231. 

*  Ante,   §§413,  415. 

6  Ante,  §  611.  This  view  is  sustained  inferentially  in  Clipper  Min. 
Co.  V.  Eli  Min.  &  Land  Co.,  194  U.  S.  220,  228,  230,  24  Sup.  Ct.  Rep. 
632,   48  L.   ed.   944. 

«  Id.,  and  see  Woods  v.  Holden,  26  L.  D.  198,  205. 


§  619     PROPERTY  RIGHTS  CONFERRED  BY  PLACER  LOCATIONS.     1526 

patent,  the  placer  claimant  will  hold  only  so  much  of 
them  as  may  be  included  within  vertical  planes  drawn 
through  his  surface  boundaries. 

The  rights  flowing  from  a  perfected  placer  location 
prior  to  application  for  patent  confer  on  the  locator 
the  exclusive  possession  of  the  surface,  but  do  not 
operate  to  give  title  or  right  of  possession  to  known 
veins  or  lodes  within  its  limits,  and  do  not  preclude 
others  from  discovering  and  locating  unknown  veins 
or  lodes,  provided  entry  for  such  purpose  can  be  made 
peaceably/ 

7  Clipper  Min.  Co.  v.  Eli  Min.  &  Land  Co.,  194  U.  S.  220,  229-231, 
24  Sup.  Ct.  Rep.  632,  48  L.  ed.  944;  and  see  Aurora  Lode  v.  Bulger 
HiU  Placer,  23  L.  D.  95. 


CHAPTER  V. 


PERPETUATION    OF    THE     ESTATE    BY    ANNUAL    DEVELOP- 
MENT  AND   IMPROVEMENT. 


§623. 

§624. 

§625. 
§626. 


Annual  labor  under  local 
rules — Provisions  of  the 
federal   law. 

Requirements  as  to  annual 
labor  imperative  in  or- 
der to  protect  claim  from 
relocation. 

Annual  labor  upon  placer 
claims. 


Supplemental  state  legisla- 
tion. 

Division    of    the    subject. 

"Claim"    defined. 

Work  done  within  the  limits 
of   a   single    location. 

Work  done  within  the  limits 
of  a  group  of  claims  in 
furtherance  of  a  common 
sj'stem    of    development. 

Work    done    outside    of  the 
boundaries  of  a  claim  or 
group  of   claims. 
§  631a.  Work    upon    placer    claims 


627. 
628. 
629. 

630. 


§631. 


,  containing  lodes  located 
by  placer  claimant. 

§  632.  Period  within  which  work 
must  be  done — Can  pre- 
liminary work  required 
by  state  laws  as  an  act 
of  location  be  credited 
on  the  first  year's  work? 

§  633.  By  whom  labor  must  be 
performed. 

§  634.  Circumstances  under  which 
performance  of  annual 
labor   is   excused. 

§  635.  Value  of  labor  and  im- 
provements —  How  esti- 
mated. 

§  636.  Proof  of  annual  labor  un- 
der state  laws. 

§  G37.  Obligation  to  perform  la- 
bor annually  ceases  with 
the  final  entry  at  the 
land   office. 

§  638.    Millsites. 


§  623.  Annual  labor  under  local  rules — Provisions 
of  the  federal  law. — From  the  earliest  period  of  mining 
in  the  west,  the  locator  of  mining  claims  of  all  classes 
was  required  to  perform  a  certain  amount  of  labor,  or 
expend  a  certain  amount  of  money  in  betterments  and 
improvements  upon,  or  for  the  benefit  of,  his  located 
claim,  as  a  condition  upon  which  he  might  continue  in 
the  possession  and  enjoyment  of  the  mining  ground 
appropriated  by  him  to  the  exclusion  of  others.  A  fail- 
ure to  perform  the  necessary  work  required  by  the 
local  rules  or  customs  amounted  to  an  abandonment  of 

(1527) 


§  623  PERPETUATION  OF  THE  ESTATE.  1528 

the  claim,  and   thereupon   it   might  be  occupied   and 
appropriated  by  another/ 

The  regulations  of  miners  which  required  that  so 
much  work  should  be  performed  upon  each  claim  were 
conditions  subsequent,  subject  to  which  the  locator 
acquired  his  rights.  So  long  as  he  complied  with  these 
conditions,  the  right  to  possess  and  mine  his  claim 
remained  with  him.^ 

The  nature  and  extent  of  the  work  required  to  be 
performed  varied  according  to  the  character  of  the 
ground  appropriated.  The  periods  within  which  the 
expenditure  was  required  to  be  made  also  varied.  Cer- 
tain classes  of  claims,  such  as  placers,  on  the  beds, 
bars,  and  banks  of  streams,  could  only  be  worked  at 
certain  seasons  of  the  year,  while  quartz  claims  might 
be  exploited  at  any  time.  Different  rules  obtained  in 
different  localities,  but  in  all  there  were  regulations 
and  customs  well  understood  and  generally  observed, 
compliance  with  which  was  insisted  upon  to  protect 
the  claim  from  being  ''jumped"  or  appropriated  by 
another. 

As  noted  in  a  previous  section,'  discovery  was  made 
the  source  of  title,  and  development,  or  working,  the 
condition  of  its  preservation.  This  development  work 
was  called  by  the  miners  ' '  assessment  work, ' '  and  the 
performance  of  it  a  representation  of  the  mine;  that 
is,  when  the  work  had  been  performed  for  a  given 
period,  the  claim  was  represented  for  that  period. 
Both  of  these  terms  are  frequently  encountered  in  the 

1  Depuy  V.  Williams,  26  Cal.  310,  314,  5  Morr.  Min.  Rep.  251; 
Kramer  v.  Settle,  1  Idaho,  485,  9  Morr.  Min.  Rep.  561;  Cons.  Repub. 
M.  Co.  V.  Lebanon  M.  Co.,  9  Colo.  343,  12  Pac.  212,  15  Morr.  Min. 
Rep.  490;  Jennison  v.  Kirk,  98  U.  S.  453,  457,  25  L.  ed.  240,  4  Morr. 
Min.  R«p.  504;   St.  John  v.  Kidd,  26  Cal.  263,  4  Morr.  Min.  Rep.  454. 

2  King  V.  Edwards,  1  Mont.  235,  240,  4  Morr.  Min,  Rep.  480. 
8  §335. 


1529  ANNUAL  LABOR  UNDER  LOCAL  RULES.  §  623 

decisions  of  the  courts,  and  they  each  have  a  recog- 
nized meaning. 

The  congressional  law  of  July  26,  1866,  made  no  at- 
tempt to  legislate  on  the  subject  of  working  mining 
claims,  leaving  it  entirely  to  local  district  or  state  regu- 
lation. 

The  act  of  May  10,  1872,  however,  made  provision 
for  the  performance  of  work  annually  on  all  claims 
theretofore  or  thereafter  located. 

As  originally  passed,  this  act  required  that,  on  all 
claims  located  prior  to  its  passage,  ten  dollars'  worth 
of  labor  should  be  performed,  or  improvements  made 
each  year,  for  each  one  hundred  feet  in  length  along  the 
vein,  until  a  patent  issued.  On  each  claim  located 
after  the  act  went  into  effect,  and  until  patent  should 
issue,  not  less  than  one  hundred  dollars'  worth  of 
work  was  required  to  be  performed,  or  improvements 
made,  during  each  year. 

By  the  phrase  ''each  year,"  as  applied  to  pre- 
existing locations,  was  meant  each  year  from  and 
after  the  passage  of  the  act.  Work  done  before  the 
act  went  into  effect  could  not  be  estimated.* 

By  the  several  amendments  subsequently  passed,' 
the  time  for  making  the  first  annual  expenditure  on 
previously  located  claims  was  extended  to  January  1, 
1875. 

As  to  claims  located  since  the  act  of  May  10,  1872, 
the  year  within  which  work  was  required  to  be  per- 
formed was  computed  from  the  date  of  the  respective 
locations,  until,  by  an  act  passed  January  22,  1880,* 
congress  provided  that  the  period  within  which  the 

4  Thompson  v.  Jacobs,  3  Utah,  246,  2  Pac.  714,  716. 
8  March  3,  1873,  17  Stats,  at  Large,  p.  483;  June  6,  1874,  18  Stats. 
at  Large,  p.  61. 

e  21  Stats,  at  Large,  p.  61;  Comp.  Stats.  1901,  p.  1426. 


§  623  PERPETUATION  OF  THE  ESTATE.  1530 

work  to  be  done  annually  on  all  unpatented  claims 
located  since  May  10,  1872,  should  commence  on  the 
first  day  of  January  next  succeeding  the  date  of  loca- 
tion of  such  claim. 

The  object  of  the  act  of  1880  was  to  render  the 
annual  periods  for  performing  work  uniform  as  to  all 
mining  claims,  by  reference  to  the  calender  year.'^  It 
did  not  act  retrospectively,  so  as  to  save  a  claim  from 
forfeiture  incurred  before  its  passage,*  nor  to  divest  a 
right  already  acquired  under  the  existing  law;**  but  the 
exemption  of  claims  from  the  performance  of  labor  for 
a  portion  of  a  year,  in  certain  cases,  was  a  necessary 
result  of  the  act.^° 

This  act  of  January  22,  1880,  is  now  in  force,  and  in 
connection  with  such  valid  supplemental  state  legisla- 
tion, if  any,  as  exists  in  the  several  local  jurisdictions, 
is  operative  as  to  all  locations  made  since  the  passage 
of  the  act  of  May  10, 1872."  It  is  not  likely  that  there 
are  now  many  claims  located  prior  to  that  date  which 
still  remain  unpatented.  There  is  no  necessity  for 
giving  this  class  of  locations  any  further  consideration. 
We  shall  discuss  the  law  as  it  applies  to  present  con- 
ditions. On  March  2,  1907,  congress  passed  an  act" 
which  refers  to  annual  labor  in  Alaska,  and  provides 
"that  during  each   year   and   until   patent   has  been 

7  McGinnis   v.   Egbert,   8   Colo.   41,   5   Pac.   652,   658,   15   Morr.   Min. 

Rep.   329. 

8  Slavonian  M.   Co.  v.   Vacavich,   7   Saw.   217,   7   Fed.  331,   1  Morr. 

Min.   Rep.   541. 

9  Hall  V.  Hale,  8  Colo.  351,  8  Pac.  580,  581. 

10  McGinnis  v.  Egbert,  8  Colo.  41,  5  Pac.  652,  658,  15  Morr.  Min. 
Rep.  329,  citing  Wade's  Am.  Min.  Law,  §  29,  p.  54;  Sickle's  Min.  Laws, 
p.  393.     See,  also,  Hall  v.  Hale,  8  Colo.  351,  8  Pac.  580,  581. 

11  McKay  v.  McDougall,  25  Mont.  258,  87  Am.  St.  Rep.  395,  64  Pac. 

669,   671. 

12  34  Stats,  at  Large,  1243,  sec.  1;  Comp.  Stats.  (Supp.  1911), 
p.  609;   Fed.  Stats.   Ann.   (Supp.   1909),  p.   25. 


1531  ANNUAL   LABOR   REQUIREMENT   IMPERATIVE.  §  624 

issued,"  one  hundred  dollars'  worth  of  labor  shall  be 
performed  for  each  claim  ''in  accordance  with  exist- 
ing law."  While  the  first  proviso,  interpreted  liter- 
ally, would  require  work  to  be  performed  during  the 
first  calendar  year  in  which  the  location  is  made,  it 
would  seem  from  the  second  proviso  above  quoted  that 
there  was  no  intention  to  alter  the  existing  law  in  this 
respect.  A  different  rule,  however,  pertains  to  placers 
in  Alaska,  where  annual  labor  is  specifically  required 
to  be  done,  including  the  year  in  which  the  location  is 
made.^* 

§  624.  Requirement  as  to  annual  labor  imperative 
in  order  to  protect  the  claim  from  relocation. — The 
question  as  to  performance  or  nonperformance  of  the 
annual  labor  is  not  one  in  which  the  government  is 
directly  concerned.^*  It  only  arises  in  the  presence  of 
one  claiming  under  a  relocation  asserting  the  non- 
compliance by  the  former  owner  of  the  claim  with  the 
requirements  of  the  law.  In  other  words,  it  is  not 
necessary  to  perform  the  annual  labor  except  to  pro- 
tect the  rights  of  the  locator  against  parties  seeking 
to  initiate  title  to  the  same  premises." 

13  Act  of  Aug.  1,  1912,  37  Stats,  at  Large,  242,  243. 

1*  There  is  an  obiter  suggestion  in  Thornton  v.  Kaufman,  40  Mont. 
282,  135  Am.  St.  Rep.  618,  106  Pac.  361,  to  the  effect  that  the  govern- 
ment may  itself  «laim  a  forfeiture  for  nonperformance  of  annual  labor, 
but  as  the  law  now  stands  this  is  clearly  in  error. 

15  Beals  V.  Cone,  27  Colo.  473,  83  Am.  St.  Rep.  92,  62  Pac.  948,  958, 
20  Morr.  Min.  Rep.  591;  Barklage  v.  Russell,  29  L.  D.  401,  402; 
In  re  Wolenberg,  29  L.  D.  302,  304;  Marburg  Lode  Mining  Claim,  30 
L.  D.  202,  206;  Wilson  v.  Freeman,  29  Mont.  470,  75  Pac.  84,  86, 
68  L.  R.  A.  833,  and  note,  q.  v.;  Upton  v.  Santa  Rita  M.  Co.,  14  N.  M. 
96,  89  Pac.  275,  287;  Knutson  v.  Fredlund,  56  Wash.  634,  106  Pac.  200, 
202;  Thornton  v.  Kaufman,  40  Mont.  282,  135  Am.  St.  Rep.  618,  106 
Pac.  361,  362;  Bingham  Amalgamated  Copper  Co.  v.  Ute  Copper  Co., 
181  Fed.  748,  750. 


§  624  PERPETUATION  OF  THE  ESTATE,  1532 

It  is  not  a  condition  precedent  to  the  obtaining  of 
a  patent;^®  nor  has  the  land  department  anything  to 
do  with  the  determination  of  the  question.^^  The 
government  is  not  in  a  position  to  forfeit  the  right 
to  the  location  if  the  annual  labor  is  not  performed, 
and  in  order  to  take  advantage  of  the  failure  to 
represent  the  claim,  the  ground  must  be  entered  upon 
and  relocated  by  another  person/®  But  to  preserve 
the  claim  from  relocation  the  requirement  as  to  annual 
labor  is  imperative. 

While  a  timely  resumption  of  work  may  prevent  a 
relocation,  the  law  contemplates  that  the  labor  or 
improvements,  actual  and  valuable,  to  the  amount  of 
one  hundred  dollars  in  each  year,  computed  from  the 
first  day  of  January  next  succeeding  the  date  of  loca- 
tion, should  be  performed  in  good  faith/^  There  is 
probably  no  single  provision  of  the  law  which  is  ^ 
evaded  to  a  greater  extent  than  this  one.  While,  of 
course,  there  are  many  exceptions,  the  average  locator 
exhausts   his   ingenuity  in   attempting   to   avoid  this 

16  Hughes  V.  Ochsner,  27  L.  D.  396,  398;  Nielson  v.  Champagne  M.  & 
M.  Co.,  29  L.  D.  491,  493. 

17  Gaffney  v.  Turner,  29  L.  D.  470,  474;  Cleveland  v.  Eureka  No.  1 
G.  M.  &  M.  Co.,  31  L.  D.  69,  71;  par.  53,  Departmental  Regulations, 
Appendix. 

18  Wilson  V.  Freeman,  29  Mont.  470,  75  Pac.  84,  86,  68  L.  R.  A.  833, 
and  note,  q.  v.;  Knutson  v.  Fredlund,  56  Wash.  634,  106  Pac.  200.  In 
Willitt  V.  Baker,  133  Fed.  937,  948,  the  circuit  court  took  the  mani- 
festly erroneous  position  in  an  adverse  suit  that  defendant  (patent 
applicant),  to  be  entitled  to  judgment,  even  where  plaintiff's  case  fails, 
must  prove  that  he  did  the  assessment  work  for  each  year.  The  right 
of  possession  of  a  mining  location  is  not  dependent  upon  the  perform- 
ance of  annual  labor  in  the  absence  of  a  valid  relocation  by  another. 

19  Morgan  v.  Tillottson,  73  Cal.  520,  15  Pac.  88,  89;  Jackson  v.  Roby, 
109  U.  S.  440,  442,  3  Sup.  Ct.  Rep.  301,  27  L.  ed.  990;  Chambers  v. 
Harrington,  111  U.  S.  350,  353,  4  Sup.  Ct.  Rep.  428,  28  L.  ed.  452; 
Anthony  v.  Jillson,  83  Cal.  296,  23  Pac.  419,  420,  16  Morr.  Min,  Rep. 
26;  Goldberg  v.  BruscM,  146  Cal.  713,  81  Pac.  23,  24. 


1533  ANNUAL   LABOR   REQUIREMENT   IMPERATIVE.  §  624 

plain  and  wholesome  requirement.  The  courts  are 
disposed  to  deal  with  these  drones  in  the  hive  with 
much  more  leniency  than  they  deserve.  The  statute 
is  too  frequently  applied  on  sentimental  lines.  For- 
feitures, say  these  tribunals,  are  odious,  and  in  many 
cases  the  reluctance  with  which  they  enforce  the  law 
encourages,  rather  than  deters,  the  systematic  evasion 
of  it.2° 

The  statute  is  extremely  liberal  as  to  the  time  in 
which  the  specified  amount  of  work  shall  be  performed. 
To  illustrate:  A  location  made  on  January  1,  1897, 
may,  in  the  absence  of  state  laws  or  local  rules  requir- 
ing development  work  to  be  performed  as  an  act  of 
location,  be  held  without  a  stroke  of  labor  until 
December  31,  1898,  and  in  no  case  is  the  period  less 
than  a  full  year.  It  would  seem  that  a  more  rigid 
enforcement  of  the  rule  would  not  only  command 
more  respect  for  the  law,  but  would,  in  a  great  degree, 
tend  to  promote  the  general  object  and  intent  of  the 
mining  statutes — the  development  of  the  mining 
resources  of  the  country. 

As  was  said  by  the  supreme  court  of  the  United 
States,  speaking  through  Justice  Miller, — 

Clearly,  the  purpose  was  ....  to  require  every 
person  who  asserted  an  exclusive  right  to  his  dis- 
covery or  claim  to  expend  something  of  labor  or 
value  on  it  as  evidence  of  his  good  faith,  and  to  show 
that  he  was  not  acting  on  the  principle  of  the  dog  in 
the  manger.^^ 

As  it  was  in  the  days  when  mining  privileges  upon 
the  public  domain  were  governed  by  local  rules,  so  it 
is  now  the  invariable  rule  that  the  locator's  only  right 

2»  Post,   §  645. 

21  Chambers  v.  Harrington,  111  U.  S.  350,  353,  4  Sup.  Ct.  Eep.  428, 
28  L.  ed.  452. 


§  625  PERPETUATION  OP  THE  ESTATE.  1534 

to  possession  depends  upon  the  performance  annually 
of  the  specified  labor.^^  The  grant  flowing  from  a  per- 
fected valid  location  is  only  protected  from  liability 
to  forfeiture  by  ** representation."^* 

§  625.  AnnuaJ  labor  upon  placer  claims. — The  lan- 
guage of  the  statute  under  consideration  does  not  in 
terms  specify  that  placer  claims  are  to  be  subjected  to- 
the  provisions  of  the  law  requiring  the  performance  of 
annual  labor.  Acting  Commissioner  Curtis  originally 
expressed  the  view  that  under  the  act  of  1872  it  was 
the  intention  of  congress  to  require  annual  expend- 
itures only  upon  lode,  or  vein,  claims,  leaving  placers 
as  they  had  been,  previous  to  the  passage  of  that  act^ 
subject  to  the  operation  of  the  local  laws;^*  but  later 
instructions  issued  by  the  land  department  insist  that 
annual  expenditures  must  be  made  upon  placer  claims 
as  well  as  lode  claims. ^^ 

The  courts  have  uniformly  held  that  the  law  was 
alike  applicable  to  both  classes  of  locations. ^^  In  sec- 
tion twenty-three  hundred  and  twenty-nine  of  the 
Kevised  Statutes  it  is  declared  that  claims  usually 
called  placers  shall  be  subject  to  entry  and  patent 
under  like  circumstances  and  conditions  and  upon 
similar  proceedings  as  are  provided  for  vein  or  lode 

22  Du  Prat  V.  James,  65  Cal.  555,  557,  4  Pac.  562,  563,  15  Morr. 
Min.   Rep.    341. 

23  Eenshaw  v.  Switzer,  6  Mont.  464,  13  Pac.  127,  128,  15  Morr.  Min. 
Rep,  345. 

24  1  Copp's  L.  O.  18. 

25  Min.  Circ,  March  24,  1887,  8  L.  D.  505;  Gen.  Min.  Reg.,  par.  25, 
Appendix. 

26  Carney  v.  Arizona  G.  M.  Co.,  65  Cal.  40,  2  Pac.  734,  735;  Jackson 
V.  Roby,  109  U.  S.  440,  3  Sup.  Ct.  Rep.  301,  27  L.  ed.  990;  St.  Louis 
Smelting  Co.  v.  Kemp,  104  U.  S.  636,  650,  26  L.  ed.  875,  11  Morr. 
Min.  Rep.  673;  Sweet  v.  Webber,  7  Colo.  443,  4  Pae.  752,  754;  Morgan 
V.  Tillottson,  73  Cal.  520,  15  Pac.  88,  89. 


1535  SUPPLEMENTAL  STATE  LEGISLATION.  §  626 

locations.     This  removes  all  doubt  and  ambiguity,  if 
any  exist,  in  the  previous  sections  of  the  statutes." 

In  Alaska,  labor  must  now  be  performed  on  pUicer 
claims  annually,  including  the  year  in  which  the  loca- 
tion is  made.'* 

§  626.  Supplemental  state  legislation.— By  the 
terms  of  section  twenty- three  hundred  and  twenty-four 
of  the  Revised  Statutes,  which  is  but  a  re-enactment 
of  section  five  of  the  act  of  May  10,  1872,  the  amount 
of  work  necessary  to  hold  possession  of  a  mining  claim 
may  be  controlled  by  local  regulation,  subject,  how- 
ever, to  the  requirements  of  the  federal  law,  that  the 
amount  shall  be  at  least  one  hundred  dollars  each  year 
for  each  claim.  As  we  have  heretofore  observed,  no 
state  has  a  right  to  decrease  the  amount  of  labor 
which  the  congressional  law  requires  to  be  done  an- 
nually on  a  mining  claim.''  But  states  and  territories, 
or  the  district  organizations  in  the  absence  of  state  or 
territorial  legislation,  may  increase  the  amount  of 
such  labor.^° 

Before  passing  to  a  discussion  of  the  character  of  the 
work  and  improvements  which  will  satisfy  the  law 
and  preserve  the  locator's  estate,  it  is  advisable  to 
briefly  epitomize  the  nature  of  supplemental  state  and 
territorial  legislation  upon  the  subject.  In  doing  so, 
we  have  at  present  no  reference  to  the  preliminary 
development  work  required  by  the  several  states  and 
territories  as  an  act  of  location,  a  subject  fully  dis- 

27  Carney  v.  Arizona  G.  M.  Co.,  65  Cal.  40,  2  Pac.  734,  735. 

28  Act  of  Aug,  1,  1912,  37  Stats,  at  Large,  242,  243,  Instructions,  41 
L.  D.  347,  348. 

29  Ante,  §250  (13),  p.  560. 

30  Sisson  V.  Sommers,  24  Nev.  379,  388,  77  Am.  St.  Rep.  815,  55  Pac. 
829,  830;  Northmore  v.  Simmons,  97  Fed.  386,  387,  38  C.  C.  A.  211,  20 
Morr.  Min.  Rep.  128. 


§  626  PERPETUATION  OF  THE  ESTATE.  1536 

cussed  in  a  preceding  article/^  We  are  to  consider 
the  scope  of  state  legislation  upon  the  subject  of  the 
annual  or  assessment  work. 

There  is  no  legislation  of  this  character  in  either 
Idaho,  Montana  or  Utah. 

In  Arizona,^^  California,^^  Nevada,^*  North  Dakota,^' 
South  Dakota,^'  and  Washington,"  provisions  are 
found  which  in  terms  adopt  the  federal  law.  This, 
of  course,  gives  no  additional  force  to  the  requirements 
of  the  congressional  law;  but  the  effect  is  to  prevent 
the  adoption  of  local  district  regulations  increasing 
the  burdens  imposed  by  the  acts  of  congress. 

New  Mexico  adopts  the  federal  law  with  reference 
to  placer  claims  but  has  no  provisions  fixing  the 
amount  or  value  of  annual  labor  on  lode  claims.^* 

In  Wyoming  it  is  provided  that  the  assessment  work 
on  placer  claims  shall  consist  in  manual  labor,  perma- 
nent improvements  made  on  the  claim  in  buildings, 
roads,  or  ditches  made  for  the  benefit  of  working  such 
claims,  or  after  any  manner,  so  long  as  the  work 
accrues  to  the  improvement  of  the  claim  or  shows  good 
faith  and  intention  on  the  part  of  the  owner,  and  his 
intention  to    hold    possession    of    said    claim.^'    The 

31  Ante,  §§  343-346. 

32  Eev.  Stats.  1901,  §  3239. 

33  Civ.  Code,  §  1426  1. 

34  Comp.  Laws  1900,  §216;  Rev.  Laws  1912,  §2430,  which  also  fixea 
the  value  of  a  day's  labor  at  four  dollars  for  eight  hours. 

36  Eev.  Code  1885,  §  1438;  Id.  1899,  §  1438;  Id.  1905,  §  1814. 

38  Pol.  Code  Dak.  1887,  p.  442,  §  2009.  Adopted  by  South  Dakota- 
Laws  1890,  ch.  cv,  §  1 ;  Grantham's  Ann.  Stats.  S.  D.,  §  2668 ;  Rev. 
Pol.  Code  1903,  §    2544. 

37  Bal.  Ann.  Codes  &  Stats.,  §  3154;  Laws  1899,  p.  73,  §  14;  Rem.  & 
Bal.  Code  1909,  §  7354.  Placers,  Laws  1899,  p.  72,  §  10  (3),  as  amended 
—Laws  1901,  p.  292;  Rem.  &  Bal.  Codes  1909,  §  7368. 

38  Laws  1909,  p.  191. 

39  Rev.  Stats.  1899,  §2554;   Comp.  Stats.  1910,  §3475. 


1537  SUPPLEMENTAL  STATE   LEGISLATION.  §  626 

remainder  of  the  provisions  on  this  subject  in  "Wyo- 
ming are  substantially  the  same  as  those  of  the  federal 
law/'* 

In  Colorado  there  is  now  no  legislation  on  the  sub- 
ject as  to  either  placer  or  lode  claims.  As  to  placers, 
the  legislature  in  1879  passed  an  act  requiring  that  on 
each  claim  of  one  hundred  and  sixty  acres,  or  more, 
there  must  be  at  least  one  hundred  dollars'  worth  of 
work  done  annually  before  August  1st  of  each  year; 
the  amount  of  work  on  smaller  claims  to  be  in  propor- 
tion, except  that  not  less  than  twelve  dollars'  worth  be 
done  on  any  claim.  Where  two  adjoining  claims  were 
owned  by  one  person,  the  work  might  all  be  done  on 
one  claim.  The  work  might  consist  of  building  or 
repairing  ditches,  or  making  other  improvements."^ 
This  law  was  held  by  the  supreme  court  of  Colorado 
to  contravene  the  federal  law,  and  to  be  therefore 
void,"-  and  it  was  later  repealed  by  the  legislature."^ 
The  objection  to  it  is  twofold.  It  limited  the  period 
in  which  the  work  was  to  be  performed,  and  except 
whem  a  claim  embraces  one  hundred  and  sixty  acres 
or  more,  required  less  work  than  is  demanded  under 
the  congressional  act. 

In  determining  the  validity  of  state  legislation  on 
this  subject  we  must  not  overlook  the  fact  that  the 
public  lands  belong  to  the  government ;  that  the  para- 
mount proprietor  is  alone  competent  to  prescribe  rules 
for  their  primary  disposal;  that  the  individual  states 
cannot  interfere  with  this  right,  or  exercise  any  privi- 
lege, unless  under  the  terms  of  the  federal  law  the 

40  Rev.  stats.  1899,  §2555;  as  amended,  Laws  1901,  p.  105,  §2; 
Comp.  Stats.  1910,  §3476. 

41  Mills'  Ann.  Stats.,  §  3137. 

42  Sweet  V.  Webber,  7  Colo.  443,  4  Pac.  752,  756. 

43  Laws  1911,  p.  515. 

Lindley  on  M. — 97 


§§  627,628  PERPETUATION  OF  THE  ESTATE.  1538 

power  is  delegated  to  them.  The  scope  of  permissive 
state  legislation  is  limited  and  defined  by  the  congres- 
sional acts.  Any  attempt  to  exceed  the  privilege 
therein  granted  necessarily  results  in  inoperative  and 
void  state  legislation.  The  period  during  which  states 
and  local  assemblages  absolutely  controlled  the  posses- 
sion and  right  of  enjoyment  of  the  public  mineral 
lands  has  long  since  passed  into  history.  As  we  have 
heretofore  said,  if  the  state  may  prescribe  any  addi- 
tional or  supplemental  rules,  increasing  the  burdens 
or  diminishing  the  benefits  granted  by  the  federal  laws 
in  lands  of  the  public  domain,  it  is  simply  because  the 
government,  as  the  owner  of  the  property,  sanctions, 
expressly  or  by  implication,  the  exercise  of  such 
privileges." 

§  627.  Division  of  the  subject. — Assuming  that  the^ 
nature  and  extent  of  annual  labor  and  improvement 
which  will  suffice  to  perpetuate  the  estate  of  the  locator 
is  to  be  determined  by  reference  solely  to  the  federal 
laws,  the  subject  may  be  considered  in  three  different 
aspects: — 

(1)  Work  done  within  the  limits  of  a  single  location, 
or  claim; 

(2)  Work  done  within  the  limits  of  a  group  of  claims 
in  furtherance  of  a  common  system  of  development ; 

(3)  Work  done  outside  of  the  boundaries  of  a  claim, 
or  group  of  claims. 

§  628.  "Claim"  defined. — Before  entering  upon  a 
discussion  of  the  subject  of  annual  labor,  it  is  necessary 
to  determine  what  is  meant  by  the  word  "claim,"  as 
used  in  section  twenty-three  hundred  and  twenty-four 
of  the  Revised  Statutes,  upon  which  the  required  work 
must  be  annually  performed. 

4*  Ante,  §  249. 


1539  "claim"  defined.  §628 

In  a  preceding  section,"  we  have  noted  the  different 
shades  of  meaning  between  "location"  and  ''mining 
claim,"  and  have  there  observed  that  if  the  miner  has 
only  the  ground  covered  by  one  location,  his  "mining 
claim"  and  his  location  are  identical,  and  the  two 
designations  may  be  indiscriminately  used  to  denote 
the  same  thing.  But  if  he  acquires  other  adjoining 
"locations"  and  adds  them  to  his  own,  then  his 
"mining  claim,"  colloquially  speaking,  may  cover  the 
ground  embraced  by  all  the  locations. 

In  applying  the  law  upon  the  subject  of  annual  labor, 
it  is  obvious  that  this  colloquial  use  of  the  terms  is  in- 
applicable. For  example:  A,  B,  and  C  each  perfect  a 
lode  location  on  the  same  vein,  the  locations  being  con- 
tiguous. Each  is  required,  under  the  law,  to  work,  or 
represent,  his  individual  claim  to  the  extent  of  one 
hundred  dollars  annually.  A  subsequently  purchases 
the  locations  of  B  and  C,  and  the  three  locations  may 
constitute  his  "claim,"  in  a  colloquial  sense.  But  he 
will  not  be  permitted  thereafter  to  hold  all  three  by 
performing  simply  one  hundred  dollars'  worth  of  work 
within  the  limits  of  one,  or  distributing  that  amount 
in  labor  and  improvements  over  the  three.  It  is  ob- 
vious that  by  purchasing  from  B  and  C  he  has  simply 
stepped  into  their  shoes,  and  the  full  amount  of  statu- 
tory work  must  be  done  upon  each,  or  three  hundred 
dollars'  worth  for  all.  The  word  "claim,"  as  used  in 
the  statute,  must,  in  this  instance,  necessarily  mean 
"location,"  as  if  the  statute  read,  on  each  location.*^ 
These  terms  are  used  interchangeably  in  the  mining 
statutes." 

«  Ante,  §  327. 

46  Opinion  of  Assistant  Attorney-General  Van  Devanter,  27  L.  D.  91. 

47  Del  Monte  M.  &  M.  Co.  v.  Last  Chance  M.  Co.,  171  U.  S.  55,  74, 
18  Sup.  Ct.  Rep.  894,  43  L.  ed.  72,  19  Morr.  Min.  Rep.  370. 


§  628  PERPETUATION  OP  THE  ESTATE.  1540 

The  same  rule  applies  to  placers.  The  unit  of  placer 
locations  is,  as  we  have  heretofore  observed,  twenty 
acres.**  But  if  appropriated  by  an  association  of  per- 
sons, a  location  may  include  one  hundred  and  sixty 
acres,  or  any  less  number,  except  in  Alaska,  where 
placer  locations  cannot  now  be  made  to  exceed  forty 
acres." 

The  individual  locator  of  a  twenty  acre  tract  must 
necessarily  perform  one  hundred  dollars'  worth  of 
labor  on  his  claim  annually.  By  a  purchase  of  other 
contiguous  locations,  and  thus  augmenting  his  surface 
area,  we  do  not  see  how  he  can  be  relieved  from  fulfill- 
ing the  requirement  as  to  every  individual  location 
which  may  be  ultimately  grouped  and  constitute  his 
''mining  claim,"  in  a  colloquial  sense.  If  such  a  rule 
were  to  prevail, — as  there  is  no  limit  to  the  number  of 
claims  which  one  may  acquire  by  purchase, — he  might 
hold  five  hundred  or  more  acres  with  the  aggregate 
annual  expenditure  of  one  hundred  dollars,  and  thus 
practically  defeat  the  purpose  of  the  law. 

A  location  by  an  association  of  persons,  embracing 
more  than  twenty  acres,  may  undoubtedly  be  perpet- 
uated by  the  performance  of  the  same  amount  of  labor 
required  of  an  individual  locator.  Work  need  not  be 
done  on  each  twenty  acre  tract  of  a  location  embrac- 
ing one  hundred  and  sixty  acres  made  by  such  associa- 
tion.°°  But  the  appropriation  by  eight  persons  of  one 
hundred  and  sixty  acres  is  accomplished  by  one  loca- 
tion. While  this  suggests  an  inequality  of  burdens,  it 
is,  in  our  judgment,  the  only  consistent  method  of  con- 

48  Ante,   §  448. 

48  37  Stats,  at  Large,  242   (Aug.  1,  1912). 

60  McDonald  v.  Montana  Wood  Co.,  14  Mont.  88,  43  Am.  St.  Rep. 
616,  35  Pac.  668,  669;  Miller  v.  Chrisman,  140  Cal.  440,  98  Am.  St. 
Rep.  63,  73  Pac.  1083,  1086,  74  Pac.  444;  S.  C,  in  error,  197  U.  S.  313, 
25  Sup.  Ct.  Rep.  468,  49  L.  ed.  770. 


3541  WORK    DONE    WITHIN    SINGLE    LOCATION.  §  629 

struing  the  statute.  A  lode  claimant  or  an  association 
of  persons  may  locate  a  full  claim  of  fifteen  hundred 
feet  in  length.  A  location  of  less  than  the  maximum 
would  not  decrease  the  burden  as  to  the  annual  work. 
The  volume  of  work  is  not  gauged  by  the  size  of  the 
claim  located.  There  is  no  sliding  scale  adjusting  the 
matter  according  to  area.  In  determining,  therefore, 
the  amount  of  annual  work  to  be  performed  in  connec- 
tion with  an  aggregation  of  locations,  each  location 
is  to  be  considered  as  a  claim  within  the  meaning  of 
the  law,  regardless  of  the  superficial  area  comprised 
in  any  one  or  more  of  them." 

§  629.  Work  done  within  the  limits  of  a  single  loca- 
tion.— The  object  of  the  law  requiring  annual  work 
is,  that  the  holder  of  a  mining  claim  shall  give  sub- 
stantial evidence  of  his  good  faith."  The  labor  is  not 
required  to  be  applied  in  any  particular  manner,  so 
long  as  it  is  unquestionably  devoted  to  the  claim.  It 
must  not  be  such  as  to  raise  a  question  as  to  its  pur- 
pose." This  labor  may  be  in  excavating,  erection  of 
works  for  mining,  and  placing  machinery." 

If  work  is  actually  done  within  the  limits  of  the  claim 
in  good  faith  for  the  purpose  of  developing  it,  strict 
compliance  with  the  requisite  of  the  statute  is  estab- 
lished, and  a  court  will  not  attempt  to  substitute  its 
own  judgment  as  to  the  wisdom  and  expediency  of  the 
method  employed  for  developing  the  mine  in  place  of 
that  of  the  owner." 

61  See    letter   of   commissioner   of   the   general   land   office   approving 
this  construction.     Mining  and  Scientific  Press,  vol.  78,  p.  122. 
52  Eoyston  v.  Miller,  76  Fed.  50,  52. 

63  Loekhardt  v.  Rollins,  2  Idaho,  503,  509,  21  Pac.  413,  415,  16  Morr. 
Min.   Rep.   16. 

64  Id. 

65  Mann  v.  Budlong,  129  Cal.  577,  62  Pac.  120;  Gear  v.  Ford,  4  Cal. 
App.  556,  88  Pac.  600,  603;   Copper  Mt.  M.  &  S.  Co.  v.  Butte  etc.  Co., 


§  629  PERPETUATION  OP  THE  ESTATE.  1542 

It  ought  not  to  be  difficult  in  investigating  the  charac- 
ter of  work  done  upon  a  mining  claim  to  determine 
whether  it  is  legitimately  done,  with  a  view  to  develop 
or  protect  the  claim,  or  whether  it  is  merely  a  flimsy 
attempt  to  evade  the  law. 

Commissioner  Williamson,  in  a  communication  to  the 
surveyor-general  of  Colorado,  thus  reflected  the  views 
of  the  land  department : — 

All  improvements  made  upon  a  mining  claim  hav- 
ing a  direct  relation  to  the  development  thereof  may 

be    taken    into    consideration Any  building, 

machinery,  roadway,  or  other  improvements  used  in 
connection  with,  and  essential  to  the  practical 
development  of  the  claim  will  enter  into  and  form  a 

part  of  the  expenditures  for  improvements 

Necessarily,  however,  improvements  of  the  character 
indicated  must  be  associated  with  actual  excavations,  v 
such  as  cuts,  tunnels,  shafts,  etc.,  so   as   to   clearly 
show  that  they  are  intended  for  use  in  connection 
with  the  claims  under  consideration.^* 

In  this  connection  it  should  be  borne  in  mind  that, 
except  in  a  few  instances,  the  character  of  the  work 
and  improvements  required  to  satisfy  the  statute  re- 
lating to  annual  labor  and  the  one  relating  to  patent 
improvements  is  substantially  the  same,"  and  we  can 
therefore  gain  considerable  light  on  the  question  of  the 
sufficiency  of  annual  expenditures  by  referring  to 
decisions  of  the  department  on  matters  involving  the 
sufficiency  of  patent  improvements. 

A  liberal  construction  should  be  given  to  the  mining 

39  Mont.  487,  133  Am.  St.  Rep.  595,  104  Pac.  540,  542.  To  the  same 
effect,  see  Hughes  v.  Ochsner,  26  L.  D.  540,  27  L.  D.  396;  Sherlock  v. 
Leighton,  9  Wyo.  297,  63  Pac.  580,  581. 

56  7  Copp's  L.  O.  179. 

67  Zephyr  et  al.  Min.  Claims,  30  L.  D.  510. 


1543  WORK    DONE    WITHIN    SINGLE    LOCATION.  §  629 

laws,^^  but  it  should  not  be  so  liberal  as  to  authorize 
a  claim  to  be  held  without  representation." 

Labor  and  improvements,  within  the  meaning-  of  the 
statute,  are  deemed  to  be  done  on  a  mining  claim  or 
lode  when  the  labor  is  performed  or  improvements 
made  for  the  purpose  of  working,  prospecting  and 
developing  the  ground  embraced  in  the  location,®"  or 
for  the  purpose  of  facilitating  the  extraction  of  the 
mineral  it  may  contain,"^  or  the  actual  extracting  of  the 
mineral." 

Work  done  for  the  purpose  of  discovering  mineral, 
whatever  the  particular  form  or  character  of  the 
deposit  which  is  the  object  of  the  search,  is  within  the 
spirit  of  the  statute."^  Drill  tests  on  placer  ground, 
considered  in  connection  with  actual  dredging  opera- 
tions on  adjoining  land,  have  been  held  to  satisfy 
patent  requirements,  even  though  evidences  of  the  drill 
tests  have  been  allowed  to  be  obliterated."  Diamond 
drill  holes  on  lode   claims   have   also  been  held  to  be 

58  McCulloch  V.  Murphy,  125  Fed.  147,  149;  Whalen  Cons.  Copper 
Co.  V.  Whalen,  127  Fed.  611,  613. 

59  Eemmington  v.  Baudit,  6  Mont.  138,  9  Pac.  819,  821;  Honaker  v. 
Martin,  11  Mont.  91,  27  Pac.  397,  398. 

60  Book  V.  Justice  M.  Co.,  58  Fed.  106,  117,  17  Morr.  Min.  Rep.  617; 
Walton  V.  Wild  Goose  M.  &  T.  Co.,  123  Fed.  209,  218,  60  C.  C.  A.  155, 
22  Morr.  Min.  Rep.  688,  charge  to  jury. 

61  St.  Louis  Smelting  Co.  v.  Kemp,  104  U.  S.  636,  655,  26  L.  ed.  875, 
11  Morr.  Min.  Rep.  673;  Justice  M.  Co.  v.  Barclay,  82  Fed.  554,  560; 
McCulloch  V.  Murphy,  125  Fed.  147,  149;  Anvil  Hydraulic  &  Drain  Co. 
V.  Code,  182  Fed.  205,  206,  105  C.  C.  A.  45;  Floyd  v.  Montgomery,  26 
L.  D.  122,  132;  Copper  Glance  Lode,  29  L.  D.  542. 

62  Wailes  v.  Davies,  158  Fed.  667,  670;  S.  C,  on  appeal,  164  Fed. 
397,  9  C.  C.  A.  385;  Copper  Mt.  M.  &  S.  Co;  v.  Butte  etc.  Co.,  39 
Mont.  487,  133  Am.  St.  Rep.  595,  104  Pac.  540,  542. 

63  Walton  V.  Wild  Goose  M.  &  T.  Co.,  123  Fed.  209,  218,  60  C.  C.  A. 
155,  22  Morr.  Min.  Rep.  688. 

64  Vance  v.  Calaveras  Gold  Dredging  Co.,  decided  by  the  secretary 
of  the  interior  April  11,  1907  (unreported),  and  Vance  v.  Dennis, 
decided  April   11,   1905,  to   the  same  efifect   (unreported). 


§  629  PERPETUATION  OF  THE  ESTATE.  1544 

satisfactory  patent  improvements.^^  Churn  drill  holes 
have  also  been  credited  as  patent  improvements.''^ 
Since  the  character  of  work  required  under  section 
twonty-three  hundred  and  twenty-four,  Revised  Stat- 
utes, for  annual  labor,  and  under  section  twenty- 
three  hundred  and  twenty-five,  Revised  Statutes,  for 
patent  improvements,  is  practically  the  same,  these 
drill  hole  decisions  may  be  safely  accepted  as  au- 
thority where  the  question  of  annual  labor  of  a 
similar  nature  arises."  Wliether  drill  holes  on  one 
claim  of  a  group  will  count  as  group  improvements  is 
still  a  mooted  question.^*  Work  done  within  the  limits 
of  placer  claims  in  search  for  lodes  has  been  held 
to  satisfy  the  law;^^  but  when  ground  sought  to  be 
patented  as  placer  is  used  exclusively  for  reservoir 
purposes  for  the  storage  of  water  to  be  conducted  else- 
where, the  cost  of  constructing  such  reservoir  cannot 
be  credited  as  work  done  on  the  claim. ^^ 

Picking  rock  from  the  walls  of  a  shaft  or  from  the 
outcroppings  of  a  ledge,  in  small  quantities  from  day 
to  day,  making  tests  for  the  purpose  of  sampling  it, 
breaking  and  examining  it  under  a  glass,  crushing  it 
in  a  mortar  and  panning  it  out,  carrying  it  away  and 
making  assays  of  it  in  an  attempt  to  find  the  "pay 
shoot,"  is  not  such  as  the  law  will  permit  the  claim- 
ant to  be  credited  with  upon  his  account  for  annual 
labor  performed.     Such  labor    does    not    add    to  the 

65  In  re  McCornick,  40  L.  D.  498. 

66  Id.  Ruling  by  the  commissioner  of  the  general  land  office,  un- 
reported. 

67  See  Zephyr  et  al.  Min.  Claims,  30  L.  D.  510,  513. 

68  See  opinion  of  commissioner  denying  the  group  character  of  such 
work  and  referred  to  in  East  Tintic  Cons.  M.  Claim,  40  L.  D.  271;  and 
see,  also.  In  re  McCornick,  40  L.  D.  498. 

69  United  States  v.  Iron  S.  M.  Co.,  24  Fed.  568,  570. 

10  Hale's  Placer,  3  L.  D.  536;  Chessman's  Placer,  2  L.  D.  774. 


1545  WORK    DONE    WITHIN    SINGLE    LOCATION.  §  629 

value  of  the  claim,  nor  does  it  tend  to  the  develop- 
ment of  the  mine." 

In  an  early  ease  in  California  it  was  held,  constru- 
ing a  rule  requiring  two  days'  work  in  every  ten,  that 
boiia  fide  ejfforts  of  the  owners  to  procure  machinery 
for  working  the  claim  might  be  justly  considered  as 
work  done  upon  the  claim  by  relation  and  intend- 
ment;^^ but  this  is  a  manifest  straining  of  the  law. 
In  later  years  the  same  court  held  that  time  consumed 
and  money  expended  for  traveling,  in  an  endeavor  to 
arrange  for  the  conduct  of  water  to  the  claim  for 
mining  purposes,  did  not  satisfy  the  law." 

Placing  upon  the  ground  mining  tools,^*  implements, 
lumber,^^  and  other  material,  which  are  not  used  to  any 
extent  and  are  subsequently  removed,  perhaps  for  the 
purpose  of  doing  similar  duty  on  some  other  location, 
is  a  mere  sham  and  a  fraud. ^*^ 

In  a  case  decided  by  the  supreme  court  of  Montana," 
an  ambulatory  building  intruded  itself  on  the  atten- 
tion of  the  court,  in  regard  to  which  Chief  Justice 
Wade  said: — 

An  attempt  seemed  to  have  been  made  to  make 
this  house  a  sort  of  a  traveling  representation  of 
mines  wherever  it  went.  If  it  could  represent  the 
Elmira  claim,  it  might  have  represented  the  others 
as  well.  If  building  that  house  was  one  representa- 
tion, taking  it  down  might  have  been  another;  and 
so  by  building,  taking  down,  and  rebuilding  that 
house  the  plaintiff  might  have  represented  all  the 

71  Bishop  T.  Baisley,  28  Or.   119,  41   Pac.  936. 

72  Packer  v.  Heaton,  9  Cal.  569,  4  Morr.  Min.  Rep.  447. 

73  Du  Prat  V.  James,  65  Cal.  555,  4  Pac.  562,  564,  15  Morr.  Min. 
Eep.  341. 

74  Adams  v.  Quijada,  25  L.  D.  24,  28. 

75  Fredericks  v.  Klauser,  52  Or.   110,  96  Pac.  679,  682. 

76  Honaker  v.  Martiu,  11  Mont.  91,  27  Pac.  397,  399. 

77  Eemmington  v.  Baudit,  6  Mont.   138,  9  Pac.  819,  821. 


§  629  PEKPETUATION  OF  THE  ESTATE.  1546 

mines  in  that  district,  and  this  process  might  go  on 
for  years,  until  sufficient  building  and  rebuilding 
had  been  done  to  entitle  the  party  to  a  patent  before 
a  stroke  of  work  had  been  performed  on  the  claim. 

This  class  of  cases  illustrates  the  extremes  to  which 
locators  will  sometimes  resort  to  save  from  reloca- 
tion claims  which  they  never  intended  to  develop, 
and  which  they  attempt  to  hold  in  utter  defiance  of 
the  law. 

It  has  been  said  that  buildings  erected  upon  mining 
claims  may  be  considered  as  improvements.  This  is 
no  doubt  true  if  they  were  erected  for  any  purpose 
reasonably  connected  with  mining  operations.  The 
element  of  good  faith  is  always  important  in  the  deter- 
mination of  questions  involving  the  performance  of 
annual  labor,'^  and  where  the  good  faith  of  applicant  is 
unquestioned,  the  department  in  estimating  the  values 
of  improvements  consisting  of  buildings  erected  for 
use  in  connection  with  active  mining  operations  will 
take  a  liberal  view,'^  though  log  cabins  used  by  laborers 
have  not  been  considered  satisfactory.^" 

To  make  such  a  building  an  improvement  under  the 
annual-labor  law,  it  must  have  been  erected  for  the 
purpose  of  benefiting  the  claim  and  for  its  develop- 
ment. It  is  absurd  to  say  that  a  building  is  an  im- 
provement on  such  claim  when  it  is  not,  and  was  not 
intended  to  be,  of  any  use  or  benefit  to  the  claim." 

78  Kinsley  v.  New  Vulture  M.  Co.,  11  Ariz.  66,  90  Pae.  438,  439,  110 
Pac.  1135. 

79  Douglas  et  al.  Lodes,  34  L.  D.  556. 

80  In  re  Dawson,  40  L.  D.  17. 

81  Bryan  v.  McCaig,  10  Colo.  309,  15  Pae.  413.  The  installation 
of  bathhouses  and  use  of  the  water  for  bathing  in  the  case  of  a  min- 
ing location  containing  saline  springs  does  not  satisfy  the  statutory 
requirement  concerning  improvements,  since  they  are  in  no  sense  related 
to  mining.     Lovely  Placer,  35  L.  D.  426. 


1547  WORK    DONE    WITHIN    SINGLE    LOCATION.  §  629 

A  stamp-mill,  even  though  located  upon  and  used 
exclusively  in  connection  with  that  particular  mining 
claim,  is  not  a  satisfactory  improvement,  for  it  does 
not  facilitate  the  extraction  of  mineral  from  the 
claim  ;*^  and  the  same  rule  applies  to  a  lime-kiln," 
and  to  an  excavation  for  the  foundation  of  a  smelter." 

A  dredge  purchased  in  good  faith  and  placed  on  a 
group  of  placers  for  the  exclusive  purpose  of  extract- 
ing the  mineral  therefrom  is  a  satisfactory  improve- 
ment for  the  group/^ 

Roadways  are  necessities,  and  where  such  have  been 
constructed  on  the  claim  for  the  manifest  purpose  of 
assisting  in  the  development  of  the  mine,  such  as 
transporting  machinery  and  materials  to  and  ore  from 
the  mine,  it  is  a  legitimate  expenditure.*®  But  mani- 
festly such  a  roadway  constructed  for  the  purpose  of 
reaching  other  properties  would  not  satisfy  the  law." 

The  land  department  is  inclined  to  be  more  rigid  in 
its  test  as  to  what  are  proper  improvements,  and 
would  not  credit  the  value  of  a  wagon-road  lying  partly 
within  and  partly  without  the  limits  of  a  group  of 

82  Monster  Lode,  85  L.  D.  493.  The  supreme  court  of  California 
(Big  Three  M.  &  M.  Co.  v.  Hamilton,  157  Cal.  130,  137  Am.  St.  Rep. 
118,  107  Pac.  301,  305)  tacitly  approved  an  instruction  which  included  a 
mill,  cyanide  plant,  and  waterworks,  as  proper  expenditures  for  annual 
labor,  though  this  question  was  not  essential  to  the  decision. 

83  Schirm  etc.   Placers,  37  L.   D.  371. 

84  Fargo  Group   No.   2,  37  L.   D.   404. 

85  Garden  Gulch  Placer,  38  L.  D.  28. 

86  Doherty  v.  Morris,  17  Colo.  105,  28  Pac.  85.  Rule  approved  in 
Nevada  Exploration  Co.  v.  Spriggs  (Utah),  124  Pac.  770,  773;  Emily 
Lode,  6  L.  D.  220;  Kinsley  v.  New  Vulture  M.  Co.,  11  Ariz.  66,  90 
Pac.  438,  110  Pac.  1135;  Sexton  v.  Washington  M.  &  M.  Co.,  55  Wash. 
380,   104  Pac.  614,  615. 

87  Gird  v.  California  Oil  Co.,  60  Fed.  531,  541,  18  Morr.  Min.  Rep. 
45;  Copper  Glance  Lode,  29  L.  D.  542;  Douglas  et  al.  Lodes,  34  L. 
P.  556. 


§  629  PERPETUATION  OF  THE  ESTATE.  1548 

claims  and  used  to  haul  machinery  to  and  ore  from 
the  group."* 

The  construction  of  a  flume  over  premises  claimed 
as  a  mining  claim,  and  their  use  as  a  deposit  for  the 
waste  material  from  an  adjoining  claim  owned  by  the 
same  person,  is  not  such  an  expenditure  as  is  required 
by  law  regulating  the  performance  of  annual  work.*^ 
The  wages  paid   to    a  watchman  employed  to  take 
care  of  and  protect  mining  property  while  it  is  idle 
have  been  held    to    satisfy  the  law  as  to  annual  ex- 
penditure ;^°  provided    such  services  were    necessary 
to    preserve    tunnels,    buildings,    or    any    structures 
erected  to  work  the  mine,  and  which  would  be  neces- 
sary in  case  active  work  was  resumed.     But  if  there 
was  only  a  naked   claim   to   be   looked    after,  and  a 
watchman  were   placed   there   merely  to   warn   pros-  ^ 
pectors,  and  thus  prevent  relocation,  the  rule  would 
be  different.®^ 

As  was  said  by  the  supreme  court  of  California, — 

The  cases  must  be  rare  in  which  it  can  justly  be 
said  that  such  money  is  expended  in  prospecting  or 
working  the  mine.  There  may  be  cases  where  work 
has  been  temporarily  suspended,  and  there  are 
structures  which  are  likely  to  be  lost  if  not  cared 
for,  and  it  appears  that  the  structure  will  be  re- 
quired when  work  is  resumed,  and  that  the  parties 
do  intend  to  resume  work,  in  which  money  expended 
to  preserve  the  structure  will  be  on  the  same  basis 

88  Fargo  Group  No.  2  Lode  Claims,  37  L.  D.  404. 

89  Jackson  V.  Koby,  109  U.  S.  440,  445,  3  Sup.  Ct.  Rep.  301,  27  L. 
ed.  990. 

90  Lockhart  v.  Rollins,  2  Idaho,  503,  21  Pac.  413,  415,  16  Morr.  Min. 
Rep.  16,  followed  in  Tripp  v.  Dunphy,  28  L.  D.  14,  16. 

91  Altoona  Q.  M.  Co.  v.  Integral  Q.  M.  Co.,  114  Cal.  100,  45  Pac. 
1047,  1048,  18  Morr.  Min.  Rep.  410;  Kinsley  v.  New  Vulture  M.  Co., 
11  Ariz.  66,  90  Pac.  438,  439,  110  Pac.  1135;  Fredericks  v.  Klauser, 
52  Or.  10,  96  Pac.  679,  682;  Ingersol  v.  Scott   (Ariz.),  108  Pac.  460. 


1549  WORK    DONE    WITHIN    SINGLE    LOCATION.  §  629 

as  money  expended  to  create  them  anew.  But  this 
could  not  go  on  indefinitely.  As  soon  as  it  should 
appear  that  this  was  done  merely  to  comply  with 
the  law  and  to  hold  the  propert)^  without  any  intent 
to  make  use  of  such  structures  within  a  reasonable 
period,  such  expenditure  could  not  be  said  to  have 
been  made  in  work  upon  the  mine.  Much  less  could 
the  mine  owner  bring  picks,  shovels,  and  things  of 
that  kind,  upon  the  mine,  and  have  someone  to  watch 
them  to  prevent  their  being  stolen,  and  have  such 
cost  of  watching  considered  as  work  upon  the 
mine.®^ 

Whether  or  not  the  expenses  of  a  keeper  may  be 
properly  included  as  assessment  work  depends  upon 
the  circumstances  of  each  case." 

Expenditures  made  in  unwatering  a  mine  might  be 
considered  in  estimating  the  amount  of  annual  work, 
if  such  unwatering  was  for  the  purpose  of  resumption 
of  active  operations.  But  where  this  class  of  work 
was  done  for  the  sole  purpose  of  having  an  expert 
examination  made  preliminary  to  a  proposed  sale,  we 
do  not  think  such  expenditure  should  be  allowed.'* 

92  Hough  V.  Hunt,  138  Cal.  142,  94  Am.  St.  Rep.  17,  70  Pac.  1059, 
lOGO.  This  case  is  commented  on  and  the  statement  made  that  much 
of  the  decision  is  obiter,  although  the  principle  announced  was  fol- 
lowed. Kinsley  v.  New  Vulture  M.  Co.,  11  Ariz.  66,  90  Pac.  438,  439, 
110  Pac.  1135.  See,  also,  Gear  v.  Ford,  4  Cal.  App.  556,  88  Pac.  600, 
603;  Merchants'  Nat.  Bank  v.  McKeown  (Or.),  119  Pac.  334,  336. 
The  presence  of  a  watchman  may,  however,  tend  to  show  actual  pos- 
session negativing  an  intention  to  abandon,  where  that  issue  is  a  mate- 
rial one,  the  annual  work  having  been  performed.  Justice  M.  Co.  v. 
Barclay,   82   Fed.   554,   562. 

93  Kinsley  v.  New  Vulture  M.  Co.,  11  Ariz.  66,  90  Pac.  438,  439, 
110  Pac.  1135;   Ingersol  v.  Scott  (Ariz.),  108  Pac.  460,  461. 

9*  Mooted,  but  not  decided,  Emerson  v.  McWhirter,  133  Cal.  510, 
65  Pac.  1036,  21  Morr.  Min.  Rep.  470;  S.  C,  in  error,  sub  nom.  Yo- 
semite  M.  Co.  v.  Emerson,  208  U.  S.  25,  28  Sup.  Ct.  Rep.  196,  52  L. 
ed.  374;  but  the  question  has  been  finally  decided  in  accordance  with 
the  text.  Evalina  G.  M.  Co.  v.  Yosemite  G.  M.  &  M.  Co.,  15  Cal.  App. 
714,  115  Pac.  946,  947. 


§  630  PERPETUATION  OF  THE  ESTATE,  1550 

Where  work  sought  to  be  credited  to  a  particular 
claim  is  also  used  to  aid  in  the  development  of  a  num- 
ber of  claims  in  a  group,  the  value  of  such  work  must 
be  apportioned  among  the  claims  benefited  and  cannot 
be  all  credited  to  a  single  claim.®^ 

§  630.  Work  done  within  the  limits  of  a  group  of 
claims  in  furtherance  of  a  common  system  of  develop- 
ment.— Long  before  patents  were  allowed,  indeed  from 
the  earliest  period  in  which  mining  for  gold  and  silver 
was  pursued  as  a  business,  miners  were  in  the  habit  of 
consolidating  adjoining  claims,  whether  they  consisted 
of  one  or  more  original  locations,  into  one,  for  con- 
venience and  economy  in  working  them.®®  This 
method  of  representing  groups  of  claims  was  per- 
petuated by  the  act  of  May  10,  1872,  and  is  found 
embodied  in  section  twenty-three  hundred  and  twenty - 
four  of  the  Revised  Statutes,  which  provides  that, 
' '  where  such  claims  are  held  in  common,  such  expendi- 
ture may  be  made  upon  any  one  claim." 

As  was  said   by  the    supreme   court  of  the  United 

States, — 

It  often  happens  that,  for  the  development  of  a 
mine  upon  which  several  claims  have  been  located, 
expenditures  are  required  exceeding  the  value  of  a 
single  claim,  and  yet  without  such  expenditures  the 
claim  could  not  be  successfully  worked.  In  such 
cases  it  has  always  been  the  practice  for  the  owners 
of  the  different  locations  to  combine  and  work  them 
as  one  general  claim;  and  expenditures  which  may 
be  necessary  for  the  development  of  all  the  claims 

may  then  be  made  on  one  of  them In  other 

words,   the    law  permits    a    general    system    to    be 

95  Upton  V.  Santa  Rita  M.  Co.,  14  N.  M.  96,  89  Pac.  275,  287. 
86  St.  Louis  Smelting  Co.  v.  Kemp,  104  U.  S.  636,  653,  26  L.  ed.  875, 
11   Morr.  Min.  Rep.  673. 


1551  WORK  DONE  ON  GROUP  CLAIMS.  §  630 

adopted  for  adjoining  claims  held  in  common,  and  in 
such  case  the  expenditures  required  may  ]je  made  or 
the  labor  be  performed  upon  any  one  of  them.*' 

In  order  to  receive  the  benefit  of  this  provision  of 
the  law,  certain  conditions  are  essential: — 

(1)  It  has  been  ruled  in  several  cases  that  the  claims 
must  be  contiguous,  so  that  each  claim  thus  associated 
may  in  some  way  be  benefited.  This  is  the  rule  an- 
nounced by  the  supreme  court  of  the  United  States,"® 
and  followed  or  assumed  in  a  number  of  subsequent 
cases  in  the  courts  and  land  department.'*  The 
supreme  court  of  Colorado,  however,  is  of  the  opinion 
that  the  decisions  asserting  or  assuming  the  necessity 
for  contiguity  are  mere  dicta,  and  that  contiguity  is  a 
nonessential ;  "°  and  the  supreme  court  of  California 
says  that  undoubtedly  the  better  authority  supports 
the  contention  that  assessment  work  may  be  done  on 

97  Jackson  t.  Eoby,  109  U.  S.  440,  445,  3  Sup.  Ct.  Rep.  301,  27  L. 
ed.  990.  See,  also,  De  Noon  v.  Morrison,  83  Cal.  163,  23  Pac.  374, 
16  Morr.  Min.  Rep.  33;  McNeil  v.  Pace,  3  L.  D.  267;  Nicholas  v. 
Becker,  11  L.  D.  8;  Dolles  v.  Hamberg  Cons.  M.  Co.,  23  L.  D.  267; 
Axiom  M.  Co.  V.  White,  10  S.  D.  198,  72  N.  W.  462,  463;  Yreka  M. 
&  M.  Co.  V.  Knight,  133  Cal.  544,  65  Pac.  1091,  1094,  21  Morr.  Min. 
Rep.  478;  Little  Dorrit  G.  M.  Co.  v.  Arapahoe  G.  M.  Co.,  30  Colo.  431, 
71  Pac.  389,  391;  Big  Three  Mining  &  M.  Co.  v.  Hamilton,  157  Cal. 
130,  137  Am.  St.  Rep.  118,  107  Pac.  301,  304;  Bakke  v.  Latimer,  3 
Alaska,  95. 

S8  Chambers  v.  Harrington,  111  U.  S.  350,  353,  4  Sup.  Ct.  Rep. 
428,  28  L.  ed.  452. 

99  Mt.  Diablo  M.  &  M.  Co.  v.  Callison,  5  Saw.  439,  Fed.  Cas.  No. 
9886,  9  Morr.  Min.  Rep.  616,  633;  Royston  v.  Miller,  76  Fed.  50,  52; 
Gird  V.  California  Oil  Co.,  60  Fed.  531,  541,  18  Morr.  Min.  Rep.  45; 
Capper  Glance  Lode,  29  L.  D.  542,  547;  Anvil  Hydraulic  &  Drain  Co.  v. 
Code,  182  Fed.  205,  206,  105  C.  C.  A.  45;  Morgan  v.  Myers,  159  Cal. 
187,  113  Pac.  153,  154. 

100  Hain  v.  Mattes,  34  Colo.  345,  83  Pac.  127,  129. 


§  630  PERPETUATION  OF  THE  ESTATE.  1552 

one  of  a  group  of  claims  owned  in  common,  even  though 
the  claims  are  not  all  adjoining/ 

If  work  done  outside  of  a  group  of  claims  can  be 
credited  to  such  group,^  it  would  seem  logical  that 
work  on  a  noncontiguous  claim  should  be  so  credited, 
provided,  of  course,  that  the  work  responded  to  the 
general  test  of  group  development — that  is,  that  the 
work  done  tends  to  develop  all  the  claims  in  the  group. 
Claims  merely  cornering  are  not  contiguous.^* 

(2)  There  must  be  a  community  of  interest  in  each 
claim.  This  interest  need  not  be  of  a  strictly  legal 
nature,^  and  different  owners  of  adjoining  claims  can 
undoubtedly  join  in  an  agreement  whereby  a  single 
shaft  may  be  sunk  or  a  tunnel  driven  on  one  of  the 
claims  for  the  joint  benefit  of  the  respective  claims, 
even  though  not  owned  in  common,  and  this  will  count 
as  assessment  work  on  all  of  the  claims  actually  bene- 
fited, as  being  a  part  of  a  general  plan  or  scheme  of 
development."  But  in  the  absence  of  such  an  agree- 
ment a  cotenant  in  a  group  of  claims  cannot  claim  for 
them  the  benefit  of  work  done  by  him  on  another  claim 
or  claims  in  which  his  co-owner  has  no  interest.^  It 
has  been  held  that  though  the  names  of  three  persons 
claiming  to  hold  three  mines  in  common  did  not  ap- 
pear in  the  location  notice  of  each  mine,  but  each  mine 

1  Big  Three  Mining  Co.  v.  Hamilton,  157  Cal.  130,  137  Am.  St.  Rep. 
118,  107  Pac.  301,  305.  Citing  Altoona  M.  Co.  v.  Integral  Co.,  114 
Cal.  100,  45  Pac.  1047,  1049,  18  Morr.  Min.  Rep.  410. 

2  See  §  631,  post. 

2a  Tomera  Placer  Claim,  33  L.  D.  560;  Hidden  Treasure  Q.  M.,  35 
L.  D.  485. 

3  Black  Lead  Lode  Extension,  32  L.  D.  595;  Golden  Crown  Lode, 
32  L.  D.  217. 

*  Merced  Oil  Co.  v.  Patterson,  153  Cal.  624,  96  Pac.  90;  Hawgood 
V.  Emery,  22  S.  D.  573,  133  Am.  St.  Rep.  941,  119  N.  W.  177,  178. 

6    Id. 


1553  WORK  DONE  ON  GROUP  CLAIMS.  §  630 

was  located  in  the  name  of  one  of  such  persons,  and 
the  legal  title  to  each  was  therefore  in  the  respective 
locator,  all  the  locations  having  been  made  under  an 
oral  agreement  that  they  should  be  located  for  the 
common  benefit,  each  locator  had  such  an  equitable 
interest  in  the  others  as  to  make  the  work  done  on  one 
mine  for  the  development  of  the  three  satisfy  the  min- 
ing laws,  if  sufficient  in  quantity  and  value;®  but  where 
a  number  of  persons  located  fifteen  hundred  feet  upon 
a  lode,  dividing  the  same  into  three  parcels  held  in  sev- 
eralty, work  done  upon  one  of  the  parcels  will  not 
inure  to  the  benefit  of  the  others.'  There  was  a  sever- 
ance of  the  community  of  interest,  and  each  parcel 
constituted  a  separate  claim.* 

(3)  The  aggregate  amount  of  the  expenditure  of 
money  or  labor  on  one  claim  must  equal  in  value  that 
which  would  be  required  on  all  the  claims  if  they  were 
separate  or  independent.® 

The  same  rule  is  recognized  and  followed  by  the  land 
department  in  estimating  value  of  the  expenditures  for 
patent  purposes  in  cases  of  group  applications.^" 

6  Eberle  v.  Carmichael,  8  N.  M.   169,  42   Pac.  95. 

7  Zeckendorf  v.  Hutchinson,  1  N.  M.  476,  9  Morr.  Min.  Rep.  483. 

8  The  department  has  held  that  when  a  common  improvement  has 
been  constructed  sufficient  in  value  for  patent  purposes  for  the  entire 
group,  and  subsequent  to  the  patenting  of  a  part  of  the  group  there 
has  been  a  sale  of  the  patented  claims,  thus  destroying  the  community 
of  interest,  the  remaining  claims  may  still  be  patented  in  reliance  on 
the  original  construction  of  the  common  improvement.  Mountain  Chief 
No.  8  Lode,  36  L.  D.   100. 

»  Chambers  v.  Harrington,  111  U.  S.  350,  353,  4  Sup.  Ct.  Rep.  428,  28 
L.  ed.  452;  Eberle  v.  Carmichael,  8  N.  M.  169,  42  Pac.  -93,  97;  Axiom 
M.  Co.  V.  White,  10  S.  D.  198,  72  N.  W.  462;  Duncan  v.  Eagle  Rock 
G.  M.  Co.,  48  Colo.  569,  139  Am.  St.  Rep.  288,  111  Pac.  588,  594;  Copper 
Glance  Lode,  29  L.  D.  542;  Golden  and  Cord  Mining  Claims,  31  L.  D. 
178,  181;  Sweeney  v.  Northern  Pac.  R.  R.,  20  L.  D.  394;  Good  Re- 
turn M.  Co.,  4  L.  D.  221;   In  re  Kinkaid,  5  L.  D.  25. 

10  Post,  §  673.  A  common  improvement  is  defined  by  the  depart- 
Lindley  oa  M. — 98 


§  630  PERPETUATION  OF  THE  ESTATE.  1554 

(4)  The  work  performed  or  improvements  made 
must  manifestly  tend  to  the  development  of  all  the 
claims  in  the  group."  The  burden  of  proof  is  on  the 
owner  to  show  that  the  work  done  or  improvement 
made  does,  as  a  matter  of  fact,  tend  to  the  development 
of  the  property  as  a  whole,  and  that  such  work  is  a 
part  of  the  general  scheme  of  improvement.^^ 

Such  is  the  rule  applied  where  work  is  done  outside 
of  the  claims  for  the  benefit  of  an  entire  group.^^ 

As  to  the  nature  and  character  of  the  work  required 
to  be  performed,  what  we  have  said  in  a  preceding 

ment  to  be  one  made  on  several  contiguous  mining  claims  held  in 
common  and  intended  to  be  and  which  is  of  such  a  character  as  to  ben- 
efit all.  Such  an  improvement  is  not  subject  to  physical  subdivision 
into  segments  and  apportionment  to  specific  claims,  but  the  group  of 
claims  benefited  participate  in  the  value  collectively  and  not  individ- 
ually. In  re  Carretto,  35  L.  D.  361;  Mountain  Chief  No.  8  Lode,  36 
L.  D.  l&O;  In  re  Dawson,  40  L.  D.  17;  Duncan  v.  Eagle  Rock  G.  M. 
Co.,  48  Colo.  569,  109  Am.  St.  Rep.  288,  111  Pac.  588,  594.  Where 
succeeding  the  construction  of  the  common  improvement  other  claims 
are  located,  the  department  allows  the  requisite  value  necessary  to 
patent  the  new  claims  only  to  be  added  to  the  common  improvement, 
and  does  not  require  the  apportionment  of  such  additional  work 
among  the   original   claims.     Aldebarra:n  Mining  Co.,  36  L.  D.   551. 

11  McCormick  v.  Baldwin,  104  Cal.  227,  37  Pac.  903,  904;  Jackson  v. 
Eoby,  109  U.  S.  440,  445,  3  Sup.  Ct.  Rep.  301,  27  L.  ed.  990;  In  re 
FoJsom,  16  Copp's  L.  0.  279;  Axiom  M.  Co.  v.  White,  10  S.  D.  198,  72 
N.  W.  462,  463;  Copper  Glance  Lode,  29  L.  D.  542;  In  re  Cassel,  32 
L.  D.  85;  Wood  Placer  M.  C.  (on  review),  32  L.  D.  401;  Lawson 
Butte  Cons.  Copper  Mine,  34  L.  D.  655;  Big  Three  M.  &  M.  Co.  v. 
Hamilton,  157  Cal.  130,  137  Am.  St.  Rep.  118,  107  Pac.  301,  305; 
Copper  Mt.  M.  &  S.  Co.  v.  Butte  &  Corbin  Cons.  C.  &  S.  Co.,  39  Mont. 
487,  133  Am.  St.  Rep.  595,  104  Pac.  540,  541. 

12  Dolles  V.  Hamberg  Cons.  M.  Co.,  23  L.  D.  267;  Copper  Glance 
Lode,  29  L.  D.  542;   Copper  Mt.  M.  &  S.  Co.  v.  Butte  &  Corbin  Cons. 

C.  &  S.  Co.,  39  Mont.  487,  133  Am.  St.  Uep.  595,  104  Pac.  540,  541. 
Whether  drill  holes  on  one  quartz  claim  can  be  credited  to  adjoining 
claims   is   a    mooted    question.     See    East    Tintic    Cons.    M.    Co.,    40    L. 

D.  271,  and  In  re  McCornick,  40  L.  D.  498. 

13  Justice  M.  Co.  v.  Barclay,  82  Fed.  554,  560;  Sherlock  v.  Leigh- 
ton,  9  Wyo.  297,  63  Pac.  580;  Hall  v.  Kearny,  18  Colo.  505,  33  Pac. 
373;  Merchants'  Nat.  Bank  v.  McKeQwn  (Or.),  119  Pac,  334,  335. 


1555  WORK  DONE  ON  GROUP  CLAIMS.  §  630 

section  with  reference  to  single  locations  applies  with 
equal  force  to  group  claims.  The  quality  required  in 
both  instances  is  the  same,  but  the  quantity  in  the  case 
of  groups  depends  upon  the  number  of  claims  sought 
to  be  represented  by  means  of  a  common  system  of 
development. 

As  to  whether  work  done  upon  one  claim  for  the 
benefit  of  a  group  does  so  benefit  all  the  claims  is  a 
question  of  fact.^* 

The  land  department  has  formulated  a  series  of 
deductions  from  the  adjudicated  cases  as  to  work 
done  outside  of  a  group  of  claims  for  the  common 
benefit  of  all  the  claims  which  embrace  the  principles 
herein  discussed.  These  deductions  will  be  found  in 
the  next  section. 

With  regard  to  work  done  within  one  placer  claim 
for  the  benefit  of  a  group  of  contiguous  claims,  it  is 
not  easy  to  formulate  rules  specifically  applicable  to 
that  class  of  locations,  and  some  difficulty  is  found  in 
applying  rules  which  are  peculiar  to  group  lode  claims. 
This  embarrassment  is  encountered  in  the  oil  regions 
of  California,  where  the  product  is  reached  by  means 
of  bored  wells.  It  may  be  said  that  a  fully  equipped 
well  on  one  twenty-acre  tract  has  a  tendency  to  de- 
velop many  others  adjoining,— that  is,  the  oil  brought 
to  the  surface  from  one  tract  is  supplied,  to  some  ex- 
tent at  least,  from  those  immediately  adjoining,  but 
it  is  impossible  to  define  the  limit  within  which  such 
a  rule  might  be  operative.  In  a  report  submitted  to 
the  lower  house  of  congress  by  the  committee  on  mines 

14  Yreka  M.  &  M.  Co.  v.  Knight,  133  Cal.  544,  65  Pac.  1091,  1094, 
21  Morr.  Min.  Rep.  478;  Big  Three  M.  &  M.  Co.  v.  Hamilton,  157 
Cal.  130,  137  Am.  St.  Rep.  118,  107  Pac.  301,  305;  Copper  M.  &  M. 
Co.  V.  Butte  &  Corbin  Cons.  C.  &  S.  Co.,  39  Mont.  487,  133  Am.  St. 
Rep.  595,  104  Pac.  540,  541;  Anvil  Hydraulic  &  Drainage  Co.  v.  Code, 
182  Fed.  205,  206,  105  C.  C.  A.  45. 


§  630  PERPETUATION  OP  THE  ESTATE.  1556 

and  mining,  it  was  said  tliat  the  land  department  was 
of  the  opinion  that  the  annual  labor  upon  this  class 
of  claims  must  be  done  upon  each  location.  In  an  at- 
tempt to  obviate  this  an  act  was  passed  by  congress, 
February  12,  1903,  which  provides  as  follows: — 

That  where  oil  lands  are  located  under  the  pro- 
visions of  title  thirty-two,  chapter  six,  Eevised  Stat- 
utes of  the  United  States,  as  placer  minino;  claims, 
the  annual  assessment  labor  upon  such  claims  may 
be  done  upon  any  one  of  a  group  of  claims  lying 
contiguous  and  owned  by  the  same  person  or  cor- 
poration, not  exceeding  five  claims  in  all;  provided, 
that  said  labor  will  tend  to  the  development  or  to 
determine  the  oil-bearing  character  of  such  con- 
tiguous claims/** 

To  what  extent  this  relieves  the  situation  or  estab- 
lishes a  rule  different  from  the  general  law  applicable 
to  group  work  generally  is  difficult  to  point  out. 

In  the  case  of  a  group  of  placer  claims  containing 
marble  it  has  been  held  that  quarrying  marble  from 
one  claim  does  not  benefit  the  others,^®  and  the  same 
rule  has  been  held  applicable  to  a  group  of  "gulch" 
placers,  and  work  on  the  lower  end  of  the  group  could 
not  be  credited  to  the  other  claims  above.^^     When  a 

15  32  stats,  at  Large,  825,  10  Fed.  Stats.  Ann.  236;  U.  S.  Com. 
Stats.    (Supp.   1905),  §  2333. 

16  In  re  Cassel,  32  L.  D.  85;  Schirm-Casey  et  al.  Placers,  37  L.  D. 
371. 

17  Wood  Placer  M.  Claims,  32  L.  D.  401.  We  can,  however,  conceive 
of  circumstances  where  it  is  essential  to  work  from  the  lower  end  of 
a  placer  deposit  and  keep  working  upstream  in  order  to  economically 
extract  the  deposits  lying  upstream,  and  in  such  a  case  work  below 
certainly  has  a  tendency  to  facilitate  the  extraction  of  the  mineral 
from  claims  upstream.  In  the  early  days  of  placer  mining  the  fact 
that  certain  placer  claims  were  situated  on  the  back  portion  of  river- 
bars  away  from  the  stream  frequently  furnished  a  valid  excuse  for 
not  working  these  back  claims  until  the  claims  fronting  on  the  river 
had  first  been  worked  and  the  back  claims  rendered  accessible,  so  that 
economic  working   was   possible. 


1557  WORK   DONE   OUTSIDE   OF  BOUNDARIES.  §  631 

dredge  has  been  placed  in  good  faith  on  a  group  of 
placers  for  the  sole  purpose  of  working  such  deposits, 
the  improvement  has  been  held  satisfactory  for  patent 
purposes/* 

§  631.  Work  done  outside  of  the  boundaries  of  a 
claim  or  group  of  claims. — By  an  act  passed  February 
11,  1875,  commonly  known  as  the  "tunnel  amend- 
ment,"^® section  twenty-three  hundred  and  twenty- 
four  of  the  Revised  Statutes  was  amended, — 

So  that  where  a  person  or  company  has,  or  may 
run,  a  tunnel  for  the  purpose  of  developing  a  lode 
or  lodes  owned  by  said  person  or  company,  the 
money  so  expended  in  said  tunnel  shall  be  taken  and 
considered  as  expended  on  said  lode  or  lodes, 
whether  located  prior  to  or  since  the  passage  of  said 
act,  and  such  person  or  company  shall  not  be  re- 
quired to  perform  work  on  the  surface  of  said  lode 
or  lodes  in  order  to  hold  the  same  as  required  by 
said  act. 

This  act  did  not  affect  the  character  of  other  work 
to  be  done  or  improvements  to  be  made  accordiug  to 
law  as  it  stood  before,  except  as  it  gave  special  value 
to  working  by  tunnel.^"  The  land  department  held, 
prior  to  the  passage  of  this  amendment,  that  develop- 
ment by  means  of  a  tunnel  satisfied  the  law,^^  although 
a  contrary  rule  had  been  previously  announced  by 
Commissioner  Drummond." 

A  tunnel-site  located  under  section  twenty-three  hun- 
dred and  twenty-three  of  the  Revised  Statutes  may 

18  Garden  Gulch  Bar  Placer,  38  L.  D.   28. 

19  18  Stats,  at  Large,  p.  315;  Comp.  Stats.  1901,  p.  1427;  5  Fed. 
Stats.  Ann.  21. 

20  Chambers  v.  Harrington,  111  U.  S.  350,  355,  4  Sup.  Ct.  Rep.  428, 
28  L.  ed.  452. 

21  In  re  Coleman,  1  Copp's  L.  0.  34. 

22  Copp's  Min.  Dec.   136,   142. 


§  631  PERPETUATION  OF  THE  ESTATE.  1558 

be  utilized  for  development  purposes.  One  may  lose 
the  right  to  the  tunnel-site  (as  a  means  of  discovery) 
by  failure  to  prosecute  the  work  with  reasonable  dili- 
gence. Yet  the  work  thereon  may  be  credited  on  as- 
sessment work  on  claims  which  are  in  fact  benefited 
by  it,'^  the  prerequisite  conditions  of  contiguity  and 
community  of  interest  being  present.^* 

But  it  is  necessary  that  the  work  shall  be  probably 
advantageous  to  all  the  claims  sought  to  be  benefited." 
It  has  been  held  that  where  tunnels  or  drifts  are 
claimed  to  be  group  improvements,  the  claimant  must 
show  ownership  or  control  over  the  land  to  be  pene- 
trated, and  that  an  extralateral  right  to  follow  a  vein 
down  from  adjoining  ground  on  its  dip  does  not  give 
such  owners  a  subsurface  right  to  crosscut  or  extend 
his  workings  to  intersect  the  vein  underneath  surface 
owned  by  someone  else.  He  must  either  follow  down 
on  his  vein  or  secure  a  right  of  way  through  subsurface 
territory  not  owned  by  him.'®  Underneath  public  land 
not  claimed  by  anyone  he  could  undoubtedly  prosecute 
such  work  and  acquire  an  easement  at  least  when  the 
work  was  completed,  and  in  states  where  mining  is  a 
public  use,  condemnation  proceedings  would  enable 
him  to  secure  his  right  of  way  and  thus  render  it  pos- 
sible for  him  to  prosecute  work  outside  of  his  claims 

23  Fissure  M.  Co.  v.  Old  Susan  M.  Co.,  22  Utah,  438,  63  Pac.  587, 
588,  21  Morr.  Min.  Eep.  125. 

24  This  paragraph  of  the  text  quoted  with  approval,  In  re  Dawson, 
40  L.  D.   17. 

25  Morgan  v.  Myers,   159   Cal.   187,   113  Pac.   153. 

26  Patten  v.  Conglomerate  M.  Co.,  35  L.  D.  617.  See,  also,  St.  Louis 
M.  &  M.  Co.  V.  Montana  M.  Co.,  113  Fed.  900,  64  L.  R.  A.  207,  51  C. 
C.  A.  530,  22  Morr.  Min.  Rep.  127;  S.  C,  194  U.  S.  235,  24  Sup.  Ct. 
Rep.  654,  48  L.  ed.  953.  But  see  contra,  Hain  v.  Mattes,  34  Colo.  345, 
83  Pac.  127,  and  Godfrey  v.  Faust,  20  S.  D.  203,  105  N.  W.  460,  where 
the  driving  of  a  tunnel  largely  through  foreign  ground  was  credited 
to  annual  work,  applying  the  analogy  of  a  wagon-road. 


1559  WORK   DONE  OUTSIDE   OF   BOUNDARIES.  §  631 

and  entitle  it  to  be  credited.  In  other  states,  where 
condemnation  for  mining  purposes  is  not  recognized 
and  the  surface  of  intervening  ground  privately  owned 
by  others,  in  the  absence  of  an  agreement  permitting 
such  work  to  be  continued  underneath  such  intervening: 
ground,  there  is  a  valid  reason  for  not  crediting  it  to 
the  claims  thus  separated  from  it. 

The  rule  is  well  settled  that  work  done  outside  of  a 
claim  or  group  of  claims,  if  done  for  the  purpose  and 
as  a  means  of  prospecting  or  developing  the  claim,  as 
in  the  case  of  tunnels,  drifts,  etc.,  is  as  available  for 
holding  the  claim  or  claims  as  if  done  within  the  bound- 
aries. One  general  system  may  be  formed,  well 
adapted  and  intended  to  work  several  contiguous 
claims  or  lodes,  and  when  such  is  the  case,  work  in 
furtherance  of  the  system,  whether  done  within  or 
without  the  claim  or  claims,  is  work  on  the  claims  in- 
tended to  be  developed.-' 

27  Text  quoted  with  approval  in  Godfrey  v.  Faust,  20  S.  D.  203,  105 
N.  W.  460,  and  see  Hawgood  v.  Emery,  22  S.  D.  573,  133  Am.  St. 
Bep.  941,  119  N.  W.  177;  Nevada  Ex.  &  M.  Co.  v.  Spriggs  (Utah),  124 
Pac.  770,  772;  Mt.  Diablo  M.  &  M.  Co.  v.  Callison,  5  Saw.  439,  457, 
Fed.  Cas.  No.  9886,  9  Morr.  Min.  Eep.  616;  Jupiter  M.  Co.  v.  Bodie 
Cons.  M.  Co.,  7  Saw,  96,  116,  11  Fed.  666,  682,  4  Morr.  Min.  Rep. 
411;  Jackson  v.  Roby,  109  U.  S.  440,  445,  3  Sup.  Ct.  Rep.  301,  27  L. 
ed.  990;  St.  Louis  Smelting  Co.  v.  Kemp,  104  U.  S.  636,  653,  26  L.  ed. 
875,  11  Morr.  Min.  Rep.  673;  De  Noon  v.  Morrison,  83  Cal.  163,  23 
Pac.  374,  16  Morr.  Min.  Rep.  33;  Chambers  v.  Harrington,  111  U.  S. 
350,  354,  4  Sup.  Ct.  Rep.  428,  28  L.  ed.  452;  Remmington  v.  Baudit, 
6  Mont.  138,  9  Pac.  819,  820;  Harrington  v.  Chambers,  3  Utah,  94,  1 
Pac.  362,  371;  Packer  v.  Heaton,  9  Cal.  568,  4  Morr.  Min.  Rep.  447; 
Hall  V.  Kearney,  18  Colo.  505,  33  Pac.  373,  374;  Doherty  v.  Morris,  17 
Colo.  105,  28  Pac.  85,  86;  United  States  v.  Iron  S.  M.  Co.,  24  Fed. 
568;  Kramer  v.  Settle,  1  Idaho,  485,  9  Morr.  Min.  Rep.  561;  Eberle 
V.  Carmichael,  8  N.  M.  169,  42  Pac.  95,  97;  Book  v.  Justice  M.  Co., 
58  Fed.  106,  117, 17  Morr.  Min.  Rep.  617;  English  v.  Johnson,  17  Cal.  107, 
76  Am.  Dec.  574,  12  Morr.  Min.  Rep.  202;  Gird  v.  California  Oil  Co., 
60  Fed.  531,  541,  18  Morr.  Min.  Rep.  45;  Royston  v.  Miller,  76  Fed. 
60,  52;   Taylor  v.  Parenteau,  23  Colo.  368,  48  Pac.  505,  507,  18  Morr. 


§  631  PERPETUATION  OF  THE  ESTATE.  1560 

Work  done  outside  of  the  claim  upon  another  pat- 
ented claim,  if  for  the  benefit  of  the  one  unpatented, 
may  be  considered  as  work  done  upon  it.^*  In  cases 
of  consolidation  of  claims,  it  is  not  necessary,  in  order 
to  have  its  due  share  of  such  work  or  improvements 
credited  to  each  claim,  that  such  group  of  claims  should 
all  be  embraced  in  the  same  proceedings  for  patent. 
If  the  mining  laws  are  complied  with  in  other  respects, 
such  claims  may  be  applied  for  and  entered  singly  or 
otherwise,  and  at  different  times,  without  in  any  way 
impairing  the  right  to  have  the  value  of  such  share 
credited  to  them  respectively.^®  But  where  improve- 
ments not  situated  upon  the  claim  are  alleged  to  have 
been  made  for  the  development  of  such  claim,  it  must 
be  clearly  demonstrated  that  such  improvements  have 
a  direct  tendency  to  such  development.'"  They  must 
have  direct  relation  to  the  claim,  or  be  in  reasonable  ^ 
proximity  to  it.'^ 

The  labor  or  improvements  to  be  so  credited  must 
actually  promote  the  extraction  of  mineral  from  the 

Min.  Rep.  534;  Strasberger  v.  Beecher,  20  Mont.  143,  49  Pac.  740, 
743;  Justice  M.  Co.  v.  Barclay,  82  Fed.  554,  561;  Klopenstine  v.  Hays, 
20  Utah,  45,  57  Pac.  712,  714;  Power  v.  Sla,  24  Mont.  243,  61  Pac. 
468,  471;  Sherlock  v.  Leighton,  9  Wyo.  297,  63  Pac.  580,  581;  Kirk 
V.  Clf.rk,  17  L.  D.  190;  Emily  Lode,  6  L.  D.  220;  Zephyr  Lode  Claim, 
30  L.  D.  510;  Copper  Glance  Lode,  29  L.  D.  542;  Willett  v.  Baker, 
133  Fed.  937,  948;  Copper  Mt.  M.  &  S.  Co.  v.  Butte  &  Corbin  Co.,  39 
Mont.  487,  133  Am.  St.  Eep.  595,  104  Pac.  540,  541;  Snowy  Peak  M. 
Co.  V.  Tamarack  etc.  Co.,  17  Mont.  630,  107  Pac.  60,  63;  Duncan  v. 
Eagle  Rock  G.  M.  &  R.  Co.,  48  Colo.  569,  139  Am.  St.  Rep.  288,  111 
Pac.  588,  594;  Bakke  v.  Latimer,  3  Alaska,  95,  98. 

28  Hall  V.  Kearny,  18  Colo.  505,  33  Pac.  373;  Sherlock  v.  Leigh- 
ton,  9  Wyo.  297,  63  Pac.  580;  Copper  Mt.  M.  &  S.  Co.  v.  Butte  & 
Corbin  Co.,  39  Mont.  487,  133  Am.  St.  Rep.  595,  104  Pac.  540. 

29  Zephyr  Lode  Mining  Claim,  30  L.  D.  510;  Mountain  Chief  Nos. 
8  and  9  Lode  Claims,  36  L.  D.  100. 

30  Louise  M.  Co.,  22  L.  D.  663;  Clark's  Pocket  Quartz  Mine,  27  L. 
D.  351. 

31  McGarrity  v.  Byington,   12   Cal.  426,  432,  2  Morr.  Min.  Rep.  311. 


1561  WORK   DONE   OUTSIDE   OF  BOUNDARIES.  §  631 

land,  or  forward  or  facilitate  the  development  of  the 
claim  as  a  mine  or  minin,^-  claim,  or  be  necessary  for 
its  care  or  the  protection  of  the  mining  works  thereon 
or  pertaining  thereto. ^^ 

An  artificial  change  of  the  physical  conditions  of 
the  earth,  in,  upon  or  so  reasonably  near  a  mining 
claim  as  to  evidence  a  design  to  discover  mineral 
therein  or  to  facilitate  its  extraction,  is  usually  con- 
templated, and  the  improvement  should  be  reasonably 
permanent  in  character.^^ 

It  is  hardly  necessary  to  enumerate  the  various  meth- 
ods by  which  mines  may  be  worked  under  a  common 
system,  necessitating  the  performance  of  labor  or  the 
erection  of  improvements  outside  the  boundaries  of  a 
claim  or  claims.  It  is  not  within  the  province  of  the 
courts  to  question  the  judgment  of  a  property  owner 
in  the  legitimate  use  of  his  property,  or  to  determine 
whether  one  mode  of  use  would  be  more  beneficial  than 
another.^*  It  depends  largely  upon  local  environment 
and  the  character  of  the  ground  to  be  developed. 
However,  the  work  must  have  some  reasonable  rela- 
tion or  adaptation  to  its  alleged  purpose,  even  when 
performed  in  good  faith,^*  and  such  that  if  continued 
will  lead  to  the  development  or  discovery  of  ore  in  the 
claims  or  facilitate  the  extraction  of  the  ores.^® 

32  Highland  Marie  and  Marcella  Lodes,  31  L.  D.  37;  Douglas  et  al. 
Lode  Claims,  34  L.  D.  556. 

33  Fredericks  v.  Klauser,  52  Or.  110,  96  Pae.  679,  682. 

34  Stone  V.  Bumpus,  46  Cal.  218,  4  Morr.  Min.  Rep.  278;  Mann  v. 
Budlong,  129  Cal.  577,  62  Pac.  120;  Gear  v.  Ford,  4  Cal.  App.  556,  88 
Pac.  600,  602;  Copper  Mt.  M.  &  S.  Co.  v.  Butte  &  Corbin  Cons.  Co., 
39  Mont.  487,  133  Am.  St.  Rep.  595,  104  Pac.  540,  542;  Nevada  Ex- 
ploration Co.  V.  Spriggs   (Utah),  124  Pac.  770,  773. 

35  Copper  Mt.  M.  &  S.  Co.  v.  Butte  &  Corbin  Cons.  Co.,  39  Mont. 
487,  133  Am.  St.  Rep.  595,  104  Pac.  540,  542. 

36  Nevada  Exploration  &  Mining  Co.  v.  Spriggs  (Utah),  124  Pac. 
770,   773. 


§  631  PERPETUATION  OP  THE  ESTATE.  1562 

The  ownership,  cost,  topographical  situation"  of 
the  shaft,  tunnel,  or  other  workings  will  be  subject  to 
inquiry  as  to  whether  it  tends  in  a  greater  or  less  de- 
gree, or  at  all,  to  the  development  of  all  the  locations 
as  required  by  the  law.^® 

Obviously,  a  tunnel,  the  portal  of  which  is  situated 
at  a  higher  elevation  than  some  of  the  claims  in  a 
group  and  projected  in  a  direction  away  from  them, 
could  hardly  aid  in  the  development  of  such  lower 
claims.^' 

As  water  is  essential  to  the  development  and  work- 
ing of  placers,  expenditures  made  in  constructing 
ditches,  flumes,  and  pipe-lines,  for  the  purpose  of  con- 
ducting water  to  the  property  for  use  on  such  prop- 
erty, will  undoubtedly  satisfy  the  law.  The  cost  of  a 
survey  preliminary  to  the  location  of  a  ditch  for  the 
development  of  the  claim  will  not,  however,  be  cred- 
ited on  the  required  statutory  expenditure,  where  the 
ditch  has  not  been  dug.*** 

Dams  and  reservoirs  constructed  upon  outside 
lands,  for  the  purpose  of  storing  water  or  acquiring 
requisite  pressure,  the  water  to  be  conducted  from 
such  dams  or  reservoirs  to,  and  used  upon,  the  mining 
claim,  are  certainly  legitimate  expenditures,  to  be  cred- 
ited upon  the  claim  where  the  water  is  used  or  to 
be  used,  although  the  cost  of  constructing  such  dams 

8T  For  a  case  stating  that  in  some  instances  topographical  conditions 
are  important  elements  to  be  considered,  see  Morgan  v.  Myers,  159 
Cal.  187,  113  Pac.  153,  154. 

38  Hughes  V.  Ochsner,  27  L.  D.  396;  Douglas  et  al.  Lode  Claims,  34 
L.  D.  556;  Lawson  Butte  Cons.  Copper  Mine,  34  L.  D.  655.  For  an 
instance  where  a  claimant  was  refused  credit  for  a  tunnel  constructed 
underneath  a  part  of  the  claim  which  was  subsequently  lost  in  adverse 
proceedings,  see  Russell  v.  Wilson  Creek  Cons.  M.  Co.,  30  L.  D.  322. 

39  Lawson  Butte   Cons.  Copper  Mine,  34  L.  D.  655. 
*o  Stork  &  Heron  Placer,  7  L.  D.  359. 


1563  WORK   DONE   OUTSIDE   OF  BOUNDARIES.  §  631 

under  such  circumstances  could  not  be  credited  to  the 
land  upon  which  they  were  constructed." 

So  a  flume  constructed  for  the  purpose  of  carrying 
away  tailings  and  waste  material  from  a  claim  may  be 
credited  to  the  claim  from  which  the  material  is  taken 
in  the  conduct  of  mining  operations;  but  is  not  consid- 
ered as  labor  performed  or  improvements  made  upon 
the  land  whereon  the  flume  is  erected  or  tailings  de- 
posited." 

A  ditch  constructed  and  actually  reaching  a  claim, 
but  not  used  or  intended  to  be  used  in  connection  with 
it,  is  not  work  for  which  the  claim  is  entitled  to 
credit." 

As  we  have  heretofore  observed,  roadways  are 
necessary,"  and  where  constructed  in  good  faith  and 
for  the  manifest  pui-pose  of  aiding  in  the  conduct  of 
mining  operations  on  the  particular  claims  sought  to 
be  represented  by  this  character  of  work,  the  cost  of 
their  construction  in  connection  with  active  mining 
operations  may  be  entitled  to  consideration;  but  this 
rule  is  to  be  applied  cautiously  and  on  the  lines  of 
obvious  common  sense.  In  a  general  way,  all  roads 
within  a  mining  district  are  convenient  and  necessary ; 
but  to  say  that  work  done  upon  the  general  highways 
within  a  mining  district  may  be  done  by  mining 
locators  and  applied  in  lieu  of  assessment  work  on 
their  respective  claims    would  be  absurd."     A  road 

41  Hale's  Placer,  3  L.  D.  536;   Chessman's  Placer,  2  L.  D.  774. 

42  St.  Louis  Smelting  Co.  v.  Kemp,  104  U.  S.  636,  653,  26  L.  ed. 
875,  11  Morr.  Min.  Rep.  673;  Jackson  v.  Roby,  109  U.  S.  440,  445,  3 
Sup.  Ct.   Rep.   301,  27   L.  ed.   990. 

43  In  re  Downs,  7  L.  D.  71;  Trickey  Placer  Claim,  7  L.  D.  52.  See 
the  case  of  Anvil  Hydraulic  &  Drainage  Co.  v.  Code,  182  Fed.  205,  206, 
105  C.  C.  A.  45. 

"  Ante,  §  629. 

«  Gird  V.  California  Oil  Co.,  60  Fed.  531,  542,  18  Morr.  Min.  Rep. 
45.     Note  the  statute  of  the  state  of  Washington  relating   to   the  sub- 


§  631  PERPETUATION  OF  THE  ESTATE.  1564 

is  not  necessarily  a  mining  improvement.  The  con- 
struction of  a  road,  no  portion  of  which  is  on  the  claim, 
and  which  is  not  intended  to  be  used  in  connection 
with  such  claim,  cannot  be  accepted  as  a  compliance 
with  the  law  relative  to  annual  expenditure.*^ 

The  connection  between  the  outlying  portions  of 
roads  and  active  mining  operations  should  be  intimate 
and  not  remote.*^ 

The  cost  of  constructing  a  smelting  furnace  at  which 
ores  from  a  large  number  of  claims  was  reduced  can- 
not be  estimated  in  determining  the  amount  of  annual 
labor  to  be  applied  to  claims  noncontiguous  to  other 
claims ;  *^  or  in  fact  to  the  claim  upon  which  the  smelter 
is  erected,*''  and  the  same  rule  is  applied  to  a  quartz- 
mill  similarly  situated  and  used.^° 

In  the  case  of  buildings  such  as  boarding-houses, 
bunk-houses,  stables,  blacksmith-shops  and  structures 
of  a  like  nature,  the  department  is  disposed  to  be  lib- 

ject  of  road  work  in  organized  mining  districts  (see  Appendix),  dis- 
cussed in  Sexton  v.  Washington  M.  &  M.  Co.,  55  Wash.  380,  104  Pac. 
614,  615. 

46  White  Cloud  C.  M.  Co.,  22  L.  D.  252.  See,  also,  Alice  Edith 
Lode,  6  L.  D.  711;  Copper  Glance  Lode,  29  L.  D.  542. 

47  Douglas  et  al.  Lode  Claims,  34  L.  D.  556.  See,  also,  Fargo  Group 
No.  2  Lode  Claims,  37  L.  D.  404,  407,  holding  that  neither  the  outlying 
portion  nor  the  segment  of  a  road  embraced  within  the  boundaries  of 
a  group  of  claims,  such  road  being  used  solely  for  the  purpose  of 
hauling  supplies  to  and  ores  from  the  mine,  could  be  credited  as  a 
patent  improvement,  since  it  is  not  intimately  enough  connected  with 
mining  operations. 

48  Copper  Glance  Lode,  29  L.  D.  542. 

49  Monster  Lode  M.  Co.,  35  L.  D.  493.  And  a  'priori  an  excavation 
for  a  smelter  cannot  be  so  applied.  Fargo  Group  No.  2  Lodes,  37 
L.  D.  404. 

50  Highland  Marie  and  Marcella  Lodes,  31  L.  D.  37.  A  stamp-mill, 
even  though  used  exclusively  in  connection  with  the  claim  upon  which 
it  is  situated,  is  not  a  satisfactory  patent  improvement.  Monster  Lode 
Min.  Claims,  35  L.  D.  493.  And  the  same  rule  applies  to  lime-kilns. 
Schirm-Carey  et  al.  Placers,  37  L.  D.  371. 


1565  WORK   DONE  OUTSIDE   OF   BOUNDARIES.  §  631 

eral  in  cases  where  good  faith  is  shown  and  the  build- 
ings are  actually  used  for  some  purposes  connected 
with  the  conduct  of  active  mining  operations  on  the 
group,"  and  the  courts  will  doubtless  take  the  same 
view  where  questions  involving  the  performance  of  an- 
nual labor  are  presented  to  them. 

Considering  the  manifest  object  and  purpose  of  the 
law  requiring  annual  development  work  as  a  condi- 
tion upon  which  the  locator's  estate  is  to  be  perpetu- 
ated, the  courts  and  the  land  department  will  readily 
discriminate  between  a  bona  fide  effort  to  fulfill  its 
requirements  and  a  fraudulent  attempt  to  evade  it, 
and  this  applies  to  work  done,  or  pretended  to  be  done, 
without  as  well  as  within  the  limits  of  a  particular 
claim  or  group  of  claims.  The  tribunals  do  not  meas- 
ure a  locator's  acts  by  hard-and-fast  lines,  but  they 
will  readily  detect  the  difference  between  the  genuine 
and  the  sham.  Where  work  is  done  outside  of  a  claim 
or  group  of  claims  which  the  claimant  asserts  benefits 
the  respective  claims,  the  burden  rests  upon  him  to 
establish  the  fact  of  such  benefit." 

The  secretary  of  the  interior,  after  a  review  of  most 
of  the  authorities  cited  in  this  and  in  the  preceding 
section,  deduced  the  following  rules  defining  the  cir- 
cumstances under  which  work  might  be  done  outside 
of  a  group  of  claims  for  the  benefit  of  all  of  the  claims 
within  the  group ;  likewise  covering  to  some  extent  the 
character  of  the  work  and  the  conditions  under  which 
it  may  be  credited  where  done  on  one  claim  for  the 
benefit  of  a  number  of  contiguous  claims : — 

(1)  Labor  and  improvements,  within  the  meaning 
of  the  statute,  are  deemed  to  have  been  had  upon  a 

61  Douglas  et  al.   Lode  Claims,  34  L.  D.  556. 

B2  Sherlock  v.  Leighton,  9  Wyo.  297,  63  Pac.  580,  581;  Justice  M. 
Co.  V.  Barclay,  82  Fed.  554,  560;  Hall  v.  Kearny,  18  Colo.  505,  33 
l^ac.  373,  374;  Fredericks  v.  K  la  user,  52  Or.  110,  96  Pac.  679,  681. 


§  631  PERPETUATION  OF  THE  ESTATE.  1566 

mining  claim,  or  upon  several  claims  held  in  common^ 
when  the  labor  is  performed  or  the  improvements  are 
made  in  order  to  facilitate  the  extraction  of  minerals 
from  the  claim,  or  the  claims  in  common,  as  the  case 
may  be,  though  such  labor  and  improvements  may  in 
fact  be  outside  the  limits  of  the  claim,  or  claims  in 
common,  or  on  only  one  of  the  several  claims  held  in 
common ; 

(2)  In  order  that  labor  performed  or  improvements 
made  upon  one  of  several  mining  claims  held  in  com- 
mon, or  upon  ground  outside  the  limits  of  such  claims, 
may  be  accepted  in  satisfaction  of  the  statute  as  to 
all  the  claims  so  held,  such  claims  must  be  adjoining 
or  contiguous,  so  that  each  claim  thus  associated  may 
be  benefited  by  the  work  done  or  improvements 
made;^^ 

(3)  Where  expenditure  in  labor  or  improvements 
relied  on  is  had  on  one  only  of  several  adjoining  or 
contiguous  claims  held  in  common,  it  is  incumbent 
upon  the  applicant  for  patent  to  the  claims  so  held 
to  show  that  such  expenditure  was  intended  to  aid  in 
the  development  of  all  the  claims,  and  that  the  labor 
and  improvements  are  of  such  a  character  as  to  re- 
dound to  the  benefit  of  all ; 

(4)  Where  the  labor  and  improvements  are  not 
upon  the  claim,  or  upon  any  of  several  adjoining  or 
contiguous  claims  held  in  common,  but  outside  thereof, 
it  is  likewise  incumbent  upon  the  applicant  for  patent 
to  such  claim  or  claims  in  common  to  show  that  the  labor 
and  improvements  were  intended  to  aid  in  the  develop- 
ment of  the  claim,  or  claims  in  common,  as  the  case  may 

S3  And  where  there  are  several  co-owners,  each  must  be  shown  to 
have  an  interest  in  every  claim  in  the  group  sought  to  be  benefited 
by  the  common  system  of  development.  Black  Lead  Extension,  32  L. 
D.   595;    Golden   Crown  Lode,   32   L.   D.   217. 


1567         PLACER  CLAIMS  CONTAINING  LODES.        §  631a 

be,  and  are  of  a  character  suitable  for  the  purposes  in- 
tended ; 

(5)  Labor  or  improvements  intended  for  the  com- 
mon benefit  of  several  noncontiguous  mining  claims 
cannot  be  apportioned  to  the  different  claims  in  satis- 
faction of  the  required  expenditure  thereon,  for  the 
reason  that  to  do  so  would  be  to  credit  each  claim  with 
an  expenditure  made  in  part  for  the  benefit  of  other 
claims  not  associated  therewith  as  claims  held  in  com- 
mon within  the  meaning  of  the  law/* 

§  631a.  Work  upon  placer  claims  containing  lodes 
located  by  placer  claimant. — It  frequently  happens 
that  lodes  are  discovered  and  known  to  exist  within 
the  limits  of  a  placer  claim.  As  such  they  are  sub- 
ject to  location  the  same  as  if  they  were  situated  else- 
where, subject  only  to  diminution  in  surface  side-line 
area."  Where  they  are  located  and  claimed  by 
strangers  to  the  placer  title,  there  can  be  no  question 
but  that  annual  labor  must  be  performed  on  the  lode 
claim  to  the  same  extent  as  if  without  the  placer. 
Where  both  placer  and  lode  claims  are  held  in  the 
same  ownership,  however,  the  inquiry  has  been  made 
as  to  whether  work  done  upon  the  placer  only  would 
be  sufficient.  There  is  no  judicial  or  departmental 
ruling  on  the  subject,  but  the  answer  seems  obvious. 
The  lode  claim  within  the  placer  is  a  distinct  claim, 
subject  to  patent  as  a  lode  claim  separate  from  the 
placer.  In  applications  for  patent  to  placer  claims, 
including  applications  for  patent  for  the  known  lodes 
embraced  therein,  the  land  department  requires  a 
showing  of  five  hundred  dollars  improvements  upon 
the   placer   and  a  like  amount   on    each   lode    claim 

64  Copper   Glance   Lode,   29   L.   D.   542,   549. 
»6  Ante,   §§   443,  445. 


§  632  PERPETUATION  OP  THE  ESTATE.  1568 

within  the  placer.^*  Applying  the  analogy  to  annual 
assessment  work,  it  is  clear  that  assessment  work 
must  be  done  on  the  lode  claims  in  addition  to  the  work 
on  the  placer. 

§  632.  Period  within  which  work  must  be  done — 
Can  preliminary  work  required  by  state  laws  as  an 
act  of  location  be  credited  on  the  first  year's  work? 

The  law  fixes  no  time  within  the  year  when  the  work 
must  be  done.  Consequently,  if  done  at  any  time  dur- 
ing the  year,  it  is  enough,  and  there  can  be  no  for- 
feiture until  the  entire  year  has  elapsed.^^ 

It  may  be  conceded  that  either  by  state  legislation, 
or,  in  its  absence,  by  local  district  regulation,  the 
amount  of  the  annual  work  prescribed  by  the  federal 
law  may  be  increased,  and  as  to  such  increased  amount 
the  states  or  districts  may  fix  any  reasonable  time 
within  which  such  additional  work  may  be  perfonned, 
regardless  of  the  period  fixed  by  the  federal  law, 
within  which  the  requirement  of  the  law  may  be  ful- 
filled.=« 

But  may  the  states  or  local  districts  lawfully  re- 
quire that  any  part  of  the  annual  work  required  by 
the  federal  law  should  be  performed  within  a  shorter 
period  than  that  specified  in  the  federal  statute, — 
i.  e.,  within  the  year  from  January  1st  next  succeeding 
the  date  of  the  location?     In  the  case  of  the  Original 

56  Ute  Placer  and  the  Oregon  and  Other  Lode  Claims  (unpublished), 
Oct.  6,  1906,  secretary  of  interior. 

5T  Belk  V.  Meagher,  3  Mont.  65,  1  Morr.  Min.  Rep.  522;  S.  C,  on 
appeal,  104  U.  S.  279,  283,  26  L.  ed.  735,  1  Morr.  Min.  Rep.  510;  Mc- 
Ginnis  v.  Egbert,  8  Colo.  41,  47,  5  Pac.  652,  658,  15  Morr.  Min.  Rep. 
329;  Atkins  v.  Hendree,  1  Idaho,  95,  2  Morr.  Min.  Rep.  328;  Hall  v. 
Hale,  8  Colo.  351,  8  Pac.  580,  581;  Mills  v.  Fletcher,  100  Cal.  142, 
34  Pac.  637,  639;  Slavonian  M.  Co.  v.  Vacavich,  7  Saw.  217,  7  Fed. 
331,  332,  1   Morr.  Min.  Rep.  541. 

58  Ante,  §  250   (13). 


1569  WHEN    WORK    MUST    BE    PERFORMED.  §  632 

Mining  Company  v.  Winthrop  Mining  Company,"  the 
supreme  court  of  California  held  that  a  local  regula- 
tion requiring  work  to  be  performed  every  sixty  days 
contravenes  the  federal  law  and  is  void. 

The  majority  of  the  circuit  court  of  appeals  of  the 
ninth  circuit,  in  the  case  of  Northmore  v.  Simmons,"" 
criticises  the  doctrine  of  the  California  case,  holding 
it  to  be  in  conflict  with  the  weight  of  authority  and  to 
be  opposed  to  the  plain  meaning  of  the  statute. 
Judge  Ross,  in  a  dissenting  opinion,  contends  that  the 
exact  reverse  is  true,  and  that  the  decision  of  the  su- 
preme court  of  California  gives  force  and  effect  to 
the  federal  statute  by  declaring  invalid  a  local  rule 
inconsistent  therewith. 

If  the  facts  of  the  case  in  Northmore  v.  Simmons 
justified  the  deduction  that  the  local  rule  there  in- 
volved applied  only  to  such  preliminary  development 
work  as  an  act  of  location,  there  would  not  necessarily 
be  any  conflict  between  the  two  cases,  and  both  could 
be  sustained  on  principle.®^ 

But  the  work  to  be  performed  under  the  local  rule 
which  was  before  the  federal  court  seems  to  have  been 
treated  by  that  tribunal  as  a  part  of  the  annual  labor 
required  by  the  federal  statute,  and  in  this  aspect 
there  is  a  sharp  conflict  between  the  two  courts. 

As  above  stated,  the  year  within  which  work  is  to 
be  performed  is  the  calendar  year  commencing  with 
the  first  day  of  January  next  succeeding  the  date  of 
the  location,  and  ending  with  the  thirty-first  day  of 
December.  A  location  made  on  January  1,  1903,  need 
not  be  represented  until  December,  1904,  thus  permit- 
ting the  claim  to  be  held  practically  two  years,  without 

69  60  Cal.  631. 

60  97  Fed.  386,  389,  38  C.  C.  A.  211,  20  Morr.  Min.  Kep.  128. 

61  Ante,    §   344. 

Lindley  on  M. — 99 


§  632  PERPETUATION  OF  THE  ESTATE,  1570 

the  necessity  of  performing  any  work  whatever,  ex- 
cept such  preliminary  development  as  may  be  required 
by  the  laws  of  the  several  states  as  an  act  of  location.^^ 

As  to  whether  or  not  work  performed  during  the 
year  in  which  the  location  is  made, — that  is^  prior  to 
the  first  day  of  January  next  succeeding  the  date  of 
the  location, — may  be  credited  on  the  first  year's  rep- 
resentation, is  a  matter  involved  in  some  doubt.  Log- 
ically, we  can  see  no  objection  to  the  locator  perform- 
ing the  full  amount  of  the  first  year's  labor  at  any  time 
after  the  inception  of  his  right  by  discovery.  While 
his  location  is  not  perfected  until  all  the  requisite  acts 
are  performed,  yet  when  completed  his  rights  relate 
back  to  the  date  of  his  discovery,  and  that  should 
be  considered  as  the  date  of  his  location,  as  it  is  the 
inception  of  his  right. "^^  The  object  and  intent  of  the 
law  would  seem  to  be  to  require  a  certain  amount  of 
lal^or  to  be  performed  before  the  end  of  a  certain 
period  next  succeeding  the  date  of  location. 

Commissioner  Williamson  at  first  accepted  this  con- 
struction of  the  law,^*  but  subsequently  announced  a 
different  view;  not,  it  is  true,  in  a  contested  case,  but 
in  the  form  of  a  letter,  wherein  he  states  that  a  claim 
located  on  October  1,  1879,  requires  the  expenditure 
of  one  hundred  dollars'  worth  of  labor  or  improve- 
ments thereon  within  the  calendar  year  1880,  and  that 
whatever  may  have  been  expended  during  the  year 
1879  will  not  answer  the  requirements  of  expendi- 
tures in  1880.^^  The  effect  of  this  rule,  if  maintained, 
will,  in  states  requiring  preliminary  development  work 
as  an  act  of  location,  deny  the  locator  any  credit  for 

62  Discovery  shaft  or  its  equivalent.     Ante,  §  344. 

63  Talbott  V.  King,  6  Mont.  76,  9  Pac.  434,  440. 

64  In  re  Hale,  7   Copp's  L.  0.   115. 

65  In  re  Haynes,  7  Copp's  L.  0.  130. 


1571  WHEN    WORK    MUST    BE    PERFORMED.  §  632 

such  preliminary  work,  unless  his  discovery  fortu- 
itously occurs  in  the  latter  part  of  a  year  and  he  is 
enabled  to  delay  such  work  until  after  January  1st. 
If  the  date  of  discovery  is  not,  by  relation,  to  be  con- 
sidered as  the  date  of  the  location,  then,  as  a  matter 
of  course,  the  preliminary  work  cannot  be  estimated 
in  an 3^  event. 

If  the  views  last  expressed  by  Commissioner  Will- 
iamson are  recognized  by  the  land  department, — and 
informal  letters  of  the  land  officers  frequently  ripen 
into  formal  rules, — the  locator's  only  safe  course  is 
to  follow  them  without  waiting  for  the  courts  to  pass 
upon  the  question. 

Of  one  thing  we  are  quite  sure:  No  matter  how  ex- 
tensive a  development  or  how  large  an  expenditure 
may  be  made  during  any  one  calendar  year,  the  excess 
over  one  hundred  dollars  cannot  be  carried  forward 
and  credited  on  the  next  year.^^  The  obligation  to 
perform  the  statutory  amount  each  year  is  not  satis- 
fied by  doing  two  or  more  years'  work  in  one. 

The  mere  pendency  of  patent  proceedings  does  not, 
prior  to  the  issuance  of  a  certificate  of  purchase,  ex- 
cuse the  performance  of  annual  labor.®^ 

On  the  question  of  the  pendency  of  an  action  insti- 
tuted in  the  courts  to  determine  an  adverse  claim  dis- 
pensing with  the  necessity  of  performing  the  annua) 
labor,  the  land  department  has  not  always  been  con- 
sistent in  its  rulings.  For  example,  they  have  at 
times  held  that  the  work  must  be  done,  notwithstand- 
ing the  title  was  being  litigated  in  the  courts.^* 

•«  In  re  Merrell,  5  Copp's  L.  O.  5. 

6T  Gillis  V.  Downey,  85  Fed.  483,  489,  29  C.  C.  A.  286;  South  End 
M.  Co.  V.  Twiney,  22  Nev.  19,  35  Pac.  89,  91;  Hughes  v.  Ochsner,  27 
L.  D.  396;  Ferguson  v.  Belvoir  Mill  Co.,  14  L.  D.  43;  Cain  v.  Addenda 
M.  Co.,  29  L.  D.  62;  McNeil  v.  Pace,  3  L.  D.  267. 

••  Continental   G.    &   S.   M.    Co.,    10   L.    D.    534;    Clark   v.    American 


§  632  PERPETUATION  OP  THE  ESTATE.  1572 

The  entry  of  judgment  in  the  adverse  suit  would  not 
excuse  its  performance.®'  The  department  has  even 
gone  so  far  as  to  assert  that  if  after  filing  an  appli- 
cation for  a  patent  and  prior  to  entry  the  applicant 
neglects  to  perform  the  necessary  work,  the  depart- 
ment may  cancel  the  application;  or  if  an  entry  has 
been  made  after  protest  filed,  alleging  failure  to  per- 
form the  work,  the  entry  may  be  canceled/"  The  most 
recent  views  of  that  tribunal,  however,  modify  the 
foregoing  statements  in  several  important  particu- 
lars/^ 

While  recognizing  its  right  to  cancel  or  dismiss  a 
patent  application  which  is  suffered  to  lie  dormant 
for  an  unreasonable  length  of  time,  or  not  prosecuted 
with  reasonable  diligence,"  it  has  enunciated  the  doc- 
trine that  the  question  of  performance  or  nonperform- 
ance of  annual  labor  is  one  confined  to  adverse 
claimants,  to  be  determined  by  the  courts,  and  that  the 
department  is  not  concerned  therewith/^ 

It  has  further  said  that  an  applicant  for  patent  who 
has  been  adversed  in  the  courts  is  not  obliged  after 
the  commencement  of  the  adverse  proceedings  to  keep 
up  the  annual  work,^*  and  the  department  has  taken 

Flag  G.  M.  Co.,  7  Copp's  L.  0.  5;  Higgins  v.  John  G.  M.  Co.,  14  Copp'a 
L.  0.  238. 

69  Reins  v.  Montana  C.  Co.,  29  L.  D.  461. 

70  Sweeney  v.  Wilson,  10  L.  D.  157. 

71  See  §  731,  post,  for  the  attitude  of  the  department  toward  reloca- 
tions  pending    patent   proceedings. 

72  Post,  §  696. 

73  Barklage  v.  Russell,  29  L.  D.  401,  402;  In  re  Wolenberg,  29  L.  D. 
302,  304;  Marburg  Lode  Mining  Claim,  30  L.  D.  202,  206;  Gaffney 
V.  Turner,  29  L.  D.  470,  474;  Cleveland  v.  Eureka  No.  1  G.  M.  Co., 
31  L.  D.  69,  71;    Copper  Bullion  etc.  Claim,  35  L.  D.   27. 

74  Marburg  Lode  Mining  Claim,  30  L.  D.  202,  211;  Lucky  Find 
Placer,  32  L.  D.  200.  But,  in  order  to  excuse  the  performance  of  an- 
nual labor,  the  adverse  suit  must  be  an  active  one,  such  as  I'the  statute 
contemplates,   and   brought   to   determine   the   right  of   possession,  and 


1573  BY   WHOM    LABOR    MUST   BE   PERFORMED.  §  633 

the  same  view  where  the  interposition  of  a  protest  has 
prevented  the  applicant  from  making  entry/^ 

This  view  of  the  law  is,  we  deferentially  suggest,  in 
direct  conflict  with  the  terms  of  the  statute,  which 
requires  the  work  to  be  done  annually  until  a  patent 
has  been  issued,^®  and  the  supreme  court  of  Montana" 
has  held  that  a  pending  protest  or  adverse  claim  does 
not  excuse  the  perforaiance  of  annual  labor,  which 
must  be  done  up  to  the  date  of  actual  cash  payment 
and  entry/^ 

There  may  be  some  ethical  reasons  preventing  an 
adverse  claimant  who  is  prosecuting  his  claim  in  the 
courts  from  relocating  a  claim  on  the  ground  of  the 
failure  of  the  patent  applicant  to  perform  the  work, 
but  such  reasons  would  not  apply  to  a  stranger  to  the 
controversy,  and  in  the  absence  of  performance  of 
work  by  one  or  the  other  of  the  litigating  parties,  third 
parties  could  certainly  relocate  and  assert  their  rights 
in  the  courts.^" 

§  633.  By  whom  labor  must  be  performed. — Mani- 
festly, the  mine  must  be  represented  and  the  annual 
work  performed  by,  or  at  the  instance  of,  the  owner 
or  someone  in  privity  with  him.  Work  done  by  a  mere 
trespasser  or  stranger  to  the  title  not  in  privity  with 
the  owner®"  will  not  inure  to  the  benefit  of  the  locator," 

not  a  dead  suit  which  the  defendant  applicant  has  power  to  dismiss 
at  any  time.     Eing  v.  Montana  Loan  &  Realty  Co.,  33  L.  D.  132. 

75  Marburg  Lode  M.  C,  30  L.  D.  202,  211;   Lucky  Find   Placer,  32 
L,  D.   200;   Eing  v.  Montana  Loan  &  Realty  Co.,   33  L.  D.   132. 

76  Rev.  Stats.,   §   2324. 

77  Poore  V.  Kaufman,  44  Mont.   248,   119  Pac.   785,  786. 

78  See,   also,   Morrison's   Mining  Eights,   14th   ed.,   pp.   571,   572,  and 
Costigan  on  Mining  Law,  pp.   2S6,  287. 

79  Post,  §  731;  Poore  v.  Kaufman,  44  Mont.  248,  119  Pac.  785,  786. 

80  In  re  McCornick,  40  L.  D.  498. 

81  Little  Gunnell   M.  Co.  v.   Kimber,   1  Morr.  Min.   Rep.   536,  Fed. 


§  633  PERPETUATION  OF  THE  ESTATE.  1574 

althougli  ultimately  paid  for  by  the  claimant;  but 
work  done  for  the  benefit  of  the  claim  by  one  holding 
the  equitable  title  will  operate  to  preserve  the  claim 
from  forfeiture  and  inure  to  the  benefit  of  the  claim.^^ 

It  is  the  duty  of  a  party  in  possession  under  a  con- 
tract of  purchase  to  do  the  work  in  order  to  preserve 
the  vendor's  right  to  the  property.^^ 

The  death  of  the  owner  will  not  excuse  the  perform- 
ance of  work,  and  the  duty  falls  upon  the  heirs  or  per- 
sonal representatives  to  perform  the  work.^* 

Compliance  with  the  law  by  a  mineral  claimant,  who 
is  at  such  time  holding  under  color  of  title,  will  accrue 
to  his  benefit  on  the  acquirement  of  the  legal  title.^^ 

The  purchaser  of  a  claim  from  a  prior  locator  is  en- 
titled to  the  benefit  of  all  expenditures  made  by  his 
grantor  in  the  development  thereof,^^  but  such  work 
cannot  be  utilized  for  the  purpose  of  expanding  the 
claim, — e.  g.,  increasing  it  from  twenty  to  fortty  acres 
in  the  case  of  placer  locations." 

A  stockholder  in  a  corporation  which  owns  a  mining 
claim  can  perform  the  work  and  prevent  a  forfeiture 
even  if  he  performed  the  work  with  the  idea  of  secur- 
ing some  personal  advantage,  for  he  has  sufficient  in- 

Cas.  No.  8402;  Nesbitt  v.  De  Lamar's  Nevada  G.  M.  Co.,  24  Nev.  273, 
77  Am.  St.  Rep.  807,  52  Pac.  609,  610,  53  Pac.  178,  179,  19  Morr.  Min. 
Eep.  286. 

82  Book  V.  Justice  M.  Co.,  58  Fed.  106,  119,  17  Morr.  Min.  Rep.  617; 
Jupiter  M.  Co.  v.  Bodie  Cons.  M.  Co.,  7  Saw.  96,  11  Fed.  666,  682, 
4  Morr.  Tilin.  Rep.  411;  Nesbitt  v.  De  Lamar's  Nevada  G.  M.  Co.,  24 
Nev.  273,  77  Am.  St.  Rep.  807,  52  Pae.  609,  610,  53  Pac.  178,  19  Morr. 
Min.  Rep.  286;  Anderson  v.  Caughey,  3  Cal.  App.  22,  84  Pac.  223,  224. 

83  Godfrey  v.  Faust,  18  S.  D.  567,  101  N.  W.  718,  719. 

84  Elder  v.  Horseshoe  M.  &  M.  Co.,  194  U.  S.  248,  256,  24  Sup.  Ct. 
Eep.   643,  48  L.   ed.   960. 

85  Dolles  V.  Hamberg  Cons.  M.   Co.,  23  L.  D.  267. 

86  Tarn  v.  Story,  21  L.  D.  440. 

87  In  re  Head,  40  L,  D.  135. 


1575  WHEN    PERFORMANCE    OF    WORK    IS    EXCUSED.  §  634 

terest  in  the  preservation  of  the  corporation  title  to 
justify  the  crediting  of  such  work  for  the  benefit  of  the 
corporation.®' 

§  634.  Circumstances  under  which  performance  of 
annual  labor  is  excused. — During  certain  periods  of  in- 
dustrial depression  congress  has  passed  special  laws 
suspending  the  provisions  of  the  section  of  the  Revised 
Statutes  requiring  the  performance  of  annual  labor,^" 
upon  the  condition,  that  the  claimant*"  file  with  the 
recorder  of  mining  locations  in  the  locality  in  which 
his  claim  was  situated  a  declaration  of  intention  to  hold 
and  work  the  claim  in  good  faith;*'  but  these  are  mere 
transitory  acts  which  have  fully  accomplished  the  ob- 
ject for  which  they  were  passed,  and  no  longer  require 
consideration.  The  existence  of  Indian  hostilities  in 
the  border  regions, — a  not  infrequent  occurrence  in 
the  past, — where  an  attempt  to  comply  with  the  law 
as  to  annual  labor  would  jeopardize  the  life  of  the 
locator,  would  certainly  excuse  the  strict  fulfillment  of 

88  Wailes  v.  Davies,  158  Fed.  667,  672;  affirmed,  164  Fed.  397,  90  C. 
C.  A.  385. 

89  Act  of  Nov.  3,  1893,  28  Stats,  at  Large,  p.  6;  Act  of  July  18, 
1894,  Id.,  114;  Act  of  July  2,  1898,  30  Stats,  at  Large,  p.  651;  Comp. 
Stats.  1901,  p.  1428,  5  Fed.  Stats.  Ann.  21  (excusing  owners  of  claims 
who  enlist  in  military  or  naval  service  of  United  States  for  duty  in 
the  war  with  Spain  from  performance  of  annual  labor).  The  effect 
of  compliance  with  this  act  is  discussed  in  Field  v.  Tanner,  32  Colo. 
278,  75  Pae.  916,  918. 

•90  "Claimant"  includes  one  who,  claiming  in  good  faith  to  be  the 
owner,  although  not  such  in  law,  files  the  notice  for  the  benefit  of  him- 
self and  his  co-owners.  Nesbitt  v.  De  Lamar's  Nevada  G.  M.  Co.,  24 
Nev.  273,  77  Am.  St.  E«p.  807,  52  Pae.  609,  610,  53  Pae.  178,  19  Morr. 
Min.   Eep.   286. 

81  Compliance  with  the  terms  of  these  acts  is  equivalent  to  perform- 
ing the  labor  for  that  year,  and  saves  the  claim  from  liability  of  for- 
feiture, although  there  has  been  a  failure  to  perform  the  work  during 
the  previous  year.     Field  v.  Tanner,  32  Colo.  278,  75  Pae.  916,  918. 


§  634  PERPETUATION  OF  THE  ESTATE.  1576 

the  requirements  of  the  law,  provided,  of  course,  that 
the  locator  returns  within  a  reasonable  time  after  the 
cessation  of  such  hostilities,  and  resumes  his  efforts  to 
represent  his  claim.  This  is  but  the  application  in  a 
larger  sense  of  the  rule  which  excuses  the  perform- 
ance of  work  when  the  claim  is  in  the  hostile  posses- 
sion of  another,  rendering  it  impossible  to  comply  with 
law  without  incurring  risk  of  injury  to  life  or  limb, 
or  committing  or  inviting  a  breach  of  the  peace. 

A  person  in  the  peaceful  and  lawful  occupancy  of 
public  land,  for  the  purpose  of  initiating  a  title,  having 
established  his  right  so  far  as  he  could  or  was  per- 
mitted, acquires  a  title  which  entitles  him  to  the  pos- 
session of  the  land  as  against  all  persons  except  the 
government.  When  he  is  forcibly  prevented  from  ful- 
filling the  letter  of  the  law,  it  will  be  presumed  that 
he  would  have  fulfilled  it  if  permitted  so  to  do.®^ 

So  it  has  been  decided  that  where  adverse  possession 
of  a  mining  claim  is  taken  and  held  wrongfully,  the 
rightful  owner  or  locator  is  excused  from  doing  the 
assessment  work  during  the  continuance  of  such  ad- 
verse holding.^^ 

It  has  been  held  that  when  an  action  has  been  brought 
to  determine  the  right  of  possession,  an  injunction  will 
lie  against  interference  with  either  party  in  the  per- 
formance by  the  other  of  acts  necessary  to  perfect  or 
preserve  a  location.^* 

92  Robinson  v.  Imperial  S.  M.  Co.,  5  Nev.  44,  10  Morr.  Min.  Rep. 
370;  Alford  v.  Dewin,  1  Nev.  207. 

93  Utah  M.  &  Mfg.  Co.  v.  Dickert  M.  S.  Co.,  6  Utah,  183,  21  Pac. 
1002,  1010,  5  L.  R.  A.  259;  Mills  v.  Fletcher,  100  Cal.  142,  34  Pac. 
637,  639;  Trevaskis  v.  Peard,  111  Cal.  599,  44  Pac.  246,  247;  Erhardt  v. 
Boaro,  8  Fed.  692,  2  McCrary,  14,  4  Morr.  Min.  Rep.  432;  Lockhart 
V.  Wills,  9  N.  M.  263,  50  Pac.  318,  320;  Id.,  9  N.  M.  344,  54  Pac.  336, 
342,  19  Morr.  Min.  Rep.  497;  Field  v.  Tanner,  32  Colo.  278,  75  Pac. 
916;  Madison  v.  Octave  Oil  Co.,  154  Cal.  768,  99  Pac.  176. 

94  Safford  v.  Fleming,  13  Idaho,  271,  89  Pac.  827,  828. 


1577  WHEN    PERFORMANCE    OF    WORK    IS    EXCUSED.  §  634 

A  locator  cannot  be  deprived  of  his  inchoate  rights 
by  the  tortious  acts  of  others,"  but  there  must  be  a 
bona  fide  effort  to  perform  the  work.  The  acts  and 
hostile  declarations  of  one  asserting  an  adverse  right 
must  be  of  so  serious  and  menacing  a  character  as  to 
satisfy  a  man  of  ordinary  prudence  that  it  would  be 
unsafe  to  begin  work.  Threats  made  at  long  range, 
when  a  relocator  is  not  in  the  physical  possession  of  the 
claim,  or  if  made  upon  the  claim,  are  of  such  a  negative 
character  as  to  preclude  the  idea  that  an  attempted 
resumption  of  work  would  be  met  with  force,  will  not 
excuse  a  reasonable  attempt  to  comply  with  the  law.®^ 

It  may  be  suggested  that  third  parties  disconnected 
with  either  the  original  locator  or  the  hostile  relocator 
might  effect  a  relocation,  which  would  defeat  the  title 
of  both  contending  parties.  The  answer  to  this  is 
found  in  the  fact  that  no  one  could  initiate  a  right  by 
force  and  violence;  ^^  and  if  the  status  of  the  claim  as  to 
physical  occupancy  is  such  as  to  admit  of  its  peaceable 
relocation  by  outsiders,  it  is  open  to  a  peaceful  re-entry 
by  the  original  locator  for  the  purpose  of  performing 
his  labor.^* 

95  Erhardt  v.  Boaro,  113  XJ.  S.  527,  534,  5  Sup.  Ct.  Rep.  560,  28  L. 
ed.  1113,  15  Morr.  Min.  Eep.  472;  Lockhardt  v.  Wills,  9  N.  M.  263,  50 
Fac.  318,  319;  Lockhart  v.  Wills,  9  N.  M.  344,  54  Pac.  336,  342,  19 
Morr.  Min.  Eep.  497;  Garvey  v.  Elder,  21  S.  D.  77,  130  Am.  St.  Eep. 
704,  109  X.  W.   508,   509. 

96  Slavonian  M.  Co.  v.  Vacavich,  7  Saw.  217,  7  Fed.  331,  335,  1  Morr. 
Min.  Eep.  541.  The  supreme  court  of  South  Dakota  seems  to  dissent 
from  this  view  and  says:  "There  may  be  decisions  which  seem  to  hold 
that  the  prior  locator  in  this  class  of  cases  should  persist  in  his  efforts 
to  perform  the  required  labor  until  prevented  by  the  apprehension  of 
imminent  physical  violence.  If  so,  we  respectfully  decline  to  follow 
them,  believing  they  do  not  rest  upon  sound  principles,  and  are  cal- 
culated to  engender  unnecessary  resorts  to  physical  force."  Garvey  v. 
Elder,  21  S.  D.  77,  130  Am.  St.  Rep.  704,  109  N.  W.  508,  509. 

9T  Ante,  §  217.     See,  also,  post,  §  688. 

88  It  has  been  claimed  that  when  a  mining  location  has  been   pes- 


§  635  PERPETUATION  OF  THE  ESTATE.  1578 

§  635.  Value  of  labor  and  improvements — How  esti- 
mated.— In  some  of  the  mining  districts  attempts  have 
been  made  to  fix  the  value  of  a  day's  labor,  and  in 
Nevada®'  we  encounter  a  statute  prescribing  the  num- 
ber of  hours  which  shall  constitute  a  day's  work  upon 
a  mining  claim,  and  providing  that  such  day's  work 
shall  be  of  the  value  of  four  dollars.  This  class  of 
legislation  contravenes  the  federal  law.'°° 

The  following  instruction  upon  the  method  of  deter- 
mining values  has  been  approved  by  the  supreme  court 
of  Montana: — 

In  determining  the  amount  of  work  done  upon  a 
claim,  or  improvements  placed  thereon  for  the  pur- 
pose of  representation,  the  test  is  as  to  the  reason- 
able value  of  the  said  work  or  improvements— not 
what  was  paid  for  it  or  what  the  contract  price  was,  ■ 
but  it  depends  entirely  upon  whether  or  not  the  said 
work  or  improvements  were  reasonably  worth  the 
said  sum  of  one  hundred  dollars.' 

sessed  and  worked  for  the  period  required  by  the  statute  of  limita- 
tions, that  the  provisions  of  section  2332,  Revised  Statutes  (Comp, 
Stats.  1901,  p.  1433;  5  Fed.  Stats.  Ann.  44),  do  not  require  the  further 
performance  of  annual  labor,  and  the  claim  would  not  be  open  to  for- 
feiture for  such  failure  to  do  the  work.  The  supreme  court  of  New 
Mexico,  after  an  exhaustive  review  of  the  authorities,  holds  that  pos- 
session for  the  statutory  period  merely  dispenses  with  the  formal  loca- 
tion and  does  not  excuse  the  performance  of  annual  labor.  Upton  v. 
Santa  Rita  M.  Co.,  14  N.  M.  96,  89  Pac.  275,  282. 

99  Comp.   Laws   1900,  §  216;    Rev.   Laws   1912,  §  2430. 

100  Penn  v.  Oldhauber,  24  Mont.  287,  61  Pac.  649,  650;  Woody  v. 
Barnard,  69  Ark.  579,   65   S.  W.   100,   101. 

1  Mattingly  v.  Lewisohn,  13  Mont.  508,  520,  35  Pac.  Ill,  114;  re- 
affirmed, Penn  v.  Oldhauber,  24  Mont.  287,  61  Pac.  649,  650;  Stolp 
V.  Treasury  G.  M.  Co.,  38  Wash.  619,  80  Pac.  817,  818;  Walton  v.  Wild 
Goose  M.  &  T.  Co.,  123  Fed.  208,  218,  60  C.  C.  A.  155,  22  Morr.  Min. 
Eep.  688,  charge  to  jury;  McCuUoch  v.  Murphy,  125  Fed.  147,  149; 
Whalen  Cons.  Copper  Co.  v.  Whalen,  127  Fed.  611,  612. 


1579  VALUE   OF  LABOR— now  ESTIMATED.  §  635 

A  mere  expenditure  is  not  of  itself  sufficient.^  The 
work  must  tend  to  develop  the  claim  and  be  of  the  rea- 
sonable value  claimed.* 

Cost  is  an  element  in  establishing  value,*  and  while 
not  conclusive,  strongly  tends  to  establish  the  good 
faith  of  the  claimant.^ 

It  is  not  material  whether  the  labor  performed  is 
paid  for  or  not,  provided  it  is  done  at  the  instigation 
of  the  owner.®  The  fulfillment  of  the  provision  of  the 
law  lies  in  the  performance  of  the  labor  or  the  making 
of  the  improvements  required,^  and  not  in  the  payment 
for  it.  Owners  of  mining  claims  are  sometimes  im- 
posed upon  by  those  who  are  paid  for  doing  the  work, 
but  the  obligation  rests  on  the  owner  to  see  that  the 
work  is  actually  done.^ 

In  estimating  the  value  of  the  labor  performed  the 
jury  should  consider  the  distance  of  the  mine  from  the 
nearest  point  where  labor  could  be  procured,  the  cost 
of  maintaining  men  while  the  labor  was  being  per- 
formed, the  current  rate  of  wages,  and  any  other  neces- 

2  McCuUoch  V.  Murphy,   125  Fed.   147,  149. 

3  Floyd  V.  Montgomery,  26  L.  D.  122,  132;  In  re  Beatty,  40  L.  D. 
486. 

*  McCormick  v.  Parriott,  33   Colo.  282,  80  Pac.  1044,  1045. 

6  Id.;  McCulloch  V.  Murphy,  125  Fed.  147,  149;  Whalen  Cons.  Cop- 
per Co.  V.  Whalen,  127  Fed.  611,  613;  Willitt  v.  Baker,  133  Fed.  937, 
948;  In  re  Beatty,  40  L.  D.  486. 

6  Lockhardt  v.  KoUins,  2  Idaho,  503,  540,  21  Pac.  413,  416,  16  Morr. 
Min.  Kep.  16;  Big  Three  M.  &  M.  Co.  v.  Hamilton,  157  Cal.  130,  137 
Am.  St.  Eep.  118,  107  Pac.  301,  305. 

7  Coleman  v.  Curtis,  12  Mont.  301,  30  Pac.  266,  268;  Anderson  v. 
Caughey,  3  Cal.  App.  22,  84  Pac.  223,  224. 

8  WagTier  v.  Dorris,  43  Or.  392,  73  Pac.  318,  321;  Protection  Min. 
Co.  V.  Forest  City  M.  Co.,  51  Wash.  643,  99  Pac.  1033,  1034. 


§  636  PERPETUATION  OF  THE  ESTATE.  1580 

sary  and  reasonable  expense  which  might  be  incurred 
in  the  performance  of  the  said  labor.* 

Experience  teaches  us  that  this  question  of  value  of 
annual  labor  forms  the  basis  of  innumerable  contro- 
versies. Every  relocator  is  interested  in  depreciating 
the  value  of  work  performed  by  the  original  locator, 
and  the  latter  in  saving  his  claim  from  forfeiture  is 
interested  in  extolling  its  worth.^°  It  is  largely  a  ques- 
tion of  opinion,  upon  which  both  practical  miners  and 
experts  will  disagree.  As  was  observed  by  the  su- 
preme court  of  Colorado, — 

It  is  probable  that  testimony  could  be  obtained  to 
show  that  nearly  all  the  annual  assessment  work  done 
upon  mining  claims  was  of  less  value  than  the  law 
required,  excepting  those  instances  where  it  greatly 
exceeds  the  sum  of  one  hundred  dollars;  and  while  ^ 
the  amount  paid  is  not  conclusive  that  work  of  that 
value  has  been  done,  but  the  actual  value  is  the  true 
test  whether  or  not  the  law  has  been  complied  with, 
yet,  where  the  testimony  is  conflicting  as  to  the  value, 
it  is  proper  to  consider  whether  there  has  been  a 
bona  fide  attempt  to  comply  with  the  law." 

§  636.  Proof  of  annual  labor  under  state  laws. — 
Most  of  the  states  and  territories  subject  to  the  con- 
gressional mining  laws  have  enacted  statutes  providing 
for  proof,  in  the  form  of  affidavits  establishing  the  fact 

9  Walton  V.  Wild  Goose  M.  &  T.  Co.,  123  Fed.  209,  218,  60  C.  C. 
A.   155,   22   Morr.  Min.   Rep.  688,  charge  to  jury. 

10  McCulloch  V.  Murphy,  125  Fed.  147,  150;  Willitt  v.  Baker,  133 
Fed.  937,  948. 

11  Quimby  v.  Boyd,  8  Colo.  194,  208,  6  Pac.  462,  471.  See,  also, 
Wright  V.  Killian,  132  Gal.  56,  64  Pac.  98,  100;  Bakke  v.  Latimer, 
3  Alaska,  95,  98.  Of  course  a  mere  attempt  in  good  faith  to  perform 
labor  will  not  avail  unless  the  work  is  actually  performed.  McKay 
V.  Neussler,  148  Fed.  86,  87,  78  C.  C.  A.  154. 


1581  PROOF  OF  ANNUAL   LABOR.  §  636 

that  the  annual  labor  for  a  given  year  has  been  per- 
formed. Such  affidavits  are  required  to  contain  a 
statement  as  to  the  nature  and  value  of  the  work  per- 
formed and  improvements  made,  and  are  to  be  filed 
before  the  end  of  a  given  period  with  the  recording 
officer  in  whose  office  record  of  mining  locations  is  made 
pursuant  to  local  or  state  legislation.  This  class  of 
legislation  is  found  in  California,"  Colorado,"  Idaho,^* 
Montana,''  Nevada,'^  New  Mexico,"  Utah,"  Washing- 
ton," Wyoming,^"  Arizona,^'  and  Arkansas,"  and  has 
been  provided  by  the  federal  government  for  Alaska." 

The  full  text  of  state  legislation  on  this  subject  will 
be  found  under  appropriate  heads  in  the  Appendix. 
It  is  unnecessary  to  consider  here  anything  beyond  the 
general  object  of  this  class  of  state  laws. 

The  failure  to  file  affidavits  of  annual  labor  is  accom- 
panied by  no  serious  penalty.     There  is  no  provision 

12  Civ.   Code,  §  1426in. 

13  Mills'  Ann.  Stats.,  §  3161,  as  amended— Session  Laws  of  1889, 
p.  261;   Eev.   Stats.  1908,  §  4209. 

14  Laws  1895,  p.  27;  Civ.  Code  1901,  §  2565;  Eev.  Code  1907, 
§  3211. 

15  Eev.  Code  1895,  §  3614.  This  section  was  omitted  from  the  Ee- 
vised  Codes  of  1907,  but  the  attorney-general  of  Montana  states  that 
it  is  still  in  effect. 

16  Comp.  Laws   1900,  §  217;   Eev.  Laws   1912,  §  2431. 

17  Act  of  March  18,   1897;   Comp.  Laws  1897,  §  2315. 

18  Laws   1899,   p.   26,  §  6;    Comp.    Stats.    1907,  §   1500. 

i»  Laws  1899,  p.  70,  §  6;  Eem.  &  Bal.  Codes  1909,  §  7363.  Placers, 
Id.,  p.  72,  §  10  (4),  as  amended— Laws  1901,  p.  292;  Eem.  &  Bal. 
Codes   1909,  §  7368. 

20  Rev.  Stats.  1899,  §  2559,  as  amended— Laws  1901,  p.  105,  §  3; 
Comp.   Stats.   1910,  §  3479. 

21  Eev.  Stats.   1901,  §  3240. 

22  Acts  of  1901,  p.  330,  §  2;  Digest  of  Stats.  1904,  §  5364. 

23  34  Stats,  at  Large,  §  1243;  Comp.  Stats.  (Supp.  1911),  p.  609; 
Fed.  Stats.  Ann.   (Supp.  1909),  p.  25. 


§  636  PERPETUATION  OF  THE  ESTATE.  1582 

in  any  of  the  existing  statutes  to  the  effect  that  a  fail- 
ure to  comply  with  its  terms  will  work  a  forfeiture."* 

If  any  such  conditions  were  inserted,  or  if  any  of  the 
laws  in  question  were  susceptible  of  any  such  construc- 
tion, they  would  undoubtedly  be  considered  as  unrea- 
sonable, and  repugnant  to  the  federal  law.  A  forfei- 
ture of  a  mining  claim  cannot  be  established,  except 
upon  clear  and  convincing  proof  of  the  failure  of  the 
locators  or  owners  of  the  claim  to  have  the  work  done 
or  improvements  made  to  the  amount  required  by  law.^' 
All  these  statutes  provide  that  the  affidavits  when  filed, 
or  certified  copies  of  them,  shall  be  prima  facie  evi- 
dence of  the  facts  therein  stated,  which,  of  course, 
means  such  facts  as  are  required  by  the  law  to  be  stated 
therein.  Such  affidavits,  although  ex  parte,  are  admis- 
sible in  evidence.^'  A  mistake  in  the  name  of  the 
owner  at  whose  expense  the  annual  work  was  done  will  ^ 
not  vitiate  the  affidavit  if  the  work  was  actually  done 
for  the  real  owner,  and  evidence  of  this  fact  would  be 
admissible." 

In  Idaho  it  is  provided  that  the  failure  to  file  such 
an  affidavit  shall  be  considered  prima  facie  evidence 
that  the  requisite  labor  has  not  been  performed,  and 
likewise  in  New  Mexico  such  failure  places  the  burden 
of  proof  upon  the  owner  or  owners  of  such  claim  to 

24  Book  V,  Justice  M.  Co.,  58  Fed.  106,  118,  17  Morr.  Min.  Eep. 
617;  Murray  Hill  M.  &  M.  Co.  v.  Havenor,  24  Utah,  73,  66  Pac.  762. 

25  Book  V.  Justice  M.  Co.,  58  Fed.  106,  118,  17  Morr.  Min.  Rep. 
617;  Hammer  v.  Garfield  M.  &  M.  Co.,  130  U.  S.  291,  301,  9  Sup.  Ct. 
Eep.  548,  32  L.  ed.  964,  16  Morr.  Min.  Rep.  125;  Strasburger  v. 
Beecher,  20  Mont.  143,  49  Pac.  740,  742;  Providence  G.  M.  Co.  v. 
Burke,  6  Ariz.  323,  57  Pac.  641,  644,  19  Morr.  Min.  Rep.  625;  post, 
§  645. 

26  Big  Three  M.  &  M.  Co.  v.  Hamilton,  157  Cal.  130,  137  Am.  St. 
Eep.  118,  107  Pac.  301. 

27  Bismarck  Gold  M.  Co.  v.  North  Sunbeam  Gold  M.  Co.,  14  Idaho, 
516,  95  Pac.   14,   19. 


1583  PROOF   OF  ANNUAL  LABOR.  §  636 

show  tliat  such  work  has  been  done  according  to  law." 
Ordinarily  the  burden  of  proof  rests  with  the  party 
charging  a  forfeiture  to  show  that  the  work  has  not 
been  performed  by  the  previous  locator.^® 

In  Idaho  and  New  Mexico,  where  there  is  a  failure 
to  file  the  proof  of  annual  labor,  or  where  it  is  not  filed 
in  time  or  the  affidavit  is  defective,  this  rule  is  modified 
and  the  burden  is  shifted.^"  We  cannot  see  any  objec- 
tion to  this  class  of  state  legislation.  The  several 
states  have  a  right  to  define  the  nature,  degree,  and 
effect  of  evidence,  within  rational  limits,  and  we  do  not 
think  these  provisions  unreasonable. 

The  general  purpose  and  object  of  state  laws  author- 
izing the  making  and  filing  of  proofs  of  annual  labor 
are  fully  stated  by  Judge  Hawley  in  Book  v.  Justice 
Mining  Co.,  in  construing  the  Nevada  statute : — 

The  object  of  this  act  was  evidently  to  fix  some 
definite  way  in  which  the  proof  as  to  the  performance 
of  the  work  or  expenses  incurred  in  the  making  of 
improvements  might  be  in  many  cases  more  accessi- 
ble. In  all  mining  communities  there  is  liable  to  be 
some  difficulty  in  finding  the  men  who  actually  per- 
formed the  labor  or  made  the  improvements  and 
procuring  their  testimony,  in  order  to  establish  the 
facts  necessary  to  show  a  compliance  with  the  mining 

law  in  this  respect Locators  of  mining  claims 

would  doubtless  often  save  much  time  and  trouble,  as 
well  as  hardship,  inconvenience,  and  expense,  by  com- 
plying with  the  provisions  of  the  act ;  but  the  act  does 

28  McKnight  v.  El  Paso  Brick  Co.,  16  N.  M.  721,  120  Pac.  694,  700. 

29  Hammer  v.  Garfield  M.  &  M.  Co.,  130  U.  S.  291,  301,  9  Sup.  Ct. 
Rep.  548,  32  L.  ed.  964,  16  Morr.  Min.  Rep.  125;  Johnson  v.  Young, 
18  Colo.  625,  34  Pac.  173;  Quigley  v.  Gillett,  101  Cal.  462,  35  Pac. 
1040,  1042,  18  Morr.  Min.  Rep.  68;  Coleman  v.  Curtis,  12  Mont.  301, 
30  Pac.  266;  Harris  v.  Kellogg,  117  Cal.  484,  49  Pac.  708,  709;  Stras- 
burger  v.  Beecher,  20  Mont.   143,  49  Pac.  740,  741. 

30  McKnight  v.  El  Paso  Brick  Co.,  16  N.  M.  721,  120  Pac.  694, 
700;   Upton  v.  Santa  Rita  M.  Co.,  14  N.  M.  96,  89  Pac.  275,  283. 


§  636  PERPETUATION  OP  THE  ESTATE.  1584 

not  prevent,  and  was  not  intended  to  prohibit,  the 
owners  of  a  mining  claim  from  making  the  necessary 
proof  in  any  other  manner,  nor  does  it  prohibit  the 
contesting  party  from  contradicting  the  facts  stated 
in  the  afifidavit.^^ 

As  was  said  by  the  supreme  court  of  Montana, — 

The  statute  provides  a  convenient  method  of  pre- 
serving prima  facie  evidence  of  the  annual  represen- 
tation of  mining  claims,  by  the  performance  of  the 
labor  or  making  of  the  improvements  of  the  value 
required  thereon,  by  putting  such  evidence  in  the 
form  of  an  affidavit,  stating  the  facts  required.  This 
statute  relates  not  to  the  effect  of  doing  the  work  or 
making  the  improvements  as  required  by  law,  but  to 
the  method  of  preserving  prima  facie  evidence  of  the 
fact  that  such  requirement  has  been  fulfilled.'' 

The  affidavit  may  be  filed  at  any  time  after  the  work 
has  been  performed,  and  prior  to  the  lapse  of  the  v 
period  fixed  by  the  statute,''  but  if  filed  after  the  period 
prescribed  has  elapsed,  it  is  ineffectual.'*  No  penalty 
is  attached  to  the  failure  to  file  such  an  affidavit,  how- 
ever, and  there  is  no  provision  in  any  of  the  existing 
statutes  bearing  upon  this  subject  which  declares  that 
such  failure  will  work  a  forfeiture  of  the  claim." 

There  is  no  requirement  in  any  of  these  laws  that 
there  should  be  a  separate  affidavit  for  each  claim  rep- 
resented;'® but  in  cases  of  groups  represented  by  work 
done  within  the  limits  of  one  of  the  claims  comprising 
it,  or  where  it  is  asserted  that  work  done  outside  of  a 

31  58  Fed.   106,   118,   17  Morr.  Min.  Rep.  617. 

32  Coleman  v.   Curtis,   12   Mont.   301,   305,   30   Pae.   266,   267;   David- 
son V.  Bordeaux,  15  Mont.  245,  250,  38  Pac.  1075,  1076. 

33  McGinnis   v.   Egbert,   8    Colo.   41,   48,   5   Pac.    652,   655,    15   Morr. 
Min.  Rep.  329. 

34  McKnight  v.  El  Paso  Brick  Co.,  16  N.  M.  721,  120  Pac.  694,  700. 

35  McCulloch  V.  Murphy,  125  Fed.   147,  150. 

36  Id. 


1585    WHEN  OBLIGATION  TO  PERFORM  LABOR  CEASES.    §  637 

claim  or  group  of  claims  was  so  performed  for  the 
benefit  of  such  claim  or  group,  the  affidavit  to  possess 
any  value  or  force  should  clearly  demonstrate  that  the 
work  so  done  related  directly  to  the  claims,  and  that 
such  work  obviously  tended  to  their  development.  A 
mere  conclusion  of  the  affiant  to  that  effect  would  not 
be  accepted. 

§  637.  Obligation  to  perform  labor  annually  ceases 
with  the  final  entry  at  the  land  office. — The  law  requires 
that  labor  shall  be  performed  or  improvements  made 
upon  each  claim  until  a  patent  has  been  issued  therefor. 

The  true  rule  of  law  governing  entries  of  public 
land,  to  which  mineral  lands  form  no  exception,  is, 
that  when  the  contract  of  purchase  is  completed  by 
the  payment  of  the  purchase  money  and  the  issuance 
of  the  patent  certificate  by  the  authorized  agents  of 
the  government,  the  purchaser  at  once  acquires  a 
vested  interest  in  the  land,  of  which  he  cannot  be 
subsequently  deprived  if  he  has  complied  with  the 
requirements  of  the  law  prior  to  entry,  and  the  land 
thereupon  ceases  to  be  a  part  of  the  public  domain, 
and  is  no  longer  subject  to  the  operation  of  the  laws 
governing  the  disposition  of  the  public  lands.  In 
such  cases  there  is  part  performance  of  a  contract  of 
sale,  which  entitles  the  purchaser  to  a  specific  per- 
formance of  the  whole  contract  without  further  ac- 
tion on  his  part.  When  the  proofs  are  made  and  the 
purchase  money  paid,  the  equitable  title  of  the  pur- 
chaser is  complete,  and  the  patent  when  issued  is 
evidence  of  the  regularity  of  the  previous  acts,  and 
relates  to  the  date  of  the  entry  to  the  exclusion  of  all 
intervening  claims.  In  short,  an  entry  made  is  in 
all  respects  equivalent  to  a  patent  issued,  in  so  far 
as  third  parties  are  concerned." 

37  Secretary  Schurz,  In  re  American  Hill  Q.  M.,  3  Sickle's  Min.  Dec. 
377;   S.  C,  Commrs.  Decision,  Id.  384.     See,  also.  Gold  Blossom  Q.  M., 
2  L.  D.  767;   American  Hill  Q.  M.,  5  Copp's  L.   0.  114;   Id.,  6   Copp's 
Lindley  on  M. — 100 


§  637  PERPETUATION  OF  THE  ESTATE.  1586 

This  view  was  accepted  by  the  courts  as  a  proper 
interpretation  of  the  law,^^  and  the  supreme  court  of 
the  United  States  quoted  approvingly  the  ruling  of  the 
land  department,  and  held  that  when  the  price  is  paid 
the  right  to  a  patent  immediately  arises.  If  not  issued 
at  once,  it  is  because  the  magnitude  of  the  business  in 
the  land  department  causes  delay;  but  such  delay  in 
the  mere  administration  of  affairs  does  not  diminish 
the  rights  flowing  from  the  purchase,  or  cast  any  addi- 
tional burdens  upon  the  purchaser,  or  expose  him  to 
the  assaults  of  third  parties.^®  The  obligation  to  per- 
form the  annual  labor  ceases,  therefore,  when  final 
entry  and  payment  is  made  and  the  certificate  of  pur- 
chase is  issued,  provided  the  issuance  of  such  certificate 
is  not  procured  through  f  raud.*°  This  obligation,  how- 
ever, may  be  revived  by  either  a  cancellation  or  sus- 
pension of  the  entry,  but  this  cancellation  cannot  be 
given  retroactive  effect  to  the  detriment  of  the  entry- 
man." 

L.  O.  1;  David  Foote  Lode,  26  L.  D.  196;  Eeins  v.  Montana  Copper 
Co.,  29  L.  D.  461,  464;  Nielson  v.  Champagne  M.  &  M.  Co.,  29  L.  D. 
491;  McCormick  v.  Night  Hawk,  29  L.  D.  373;  Marburg  Lode  Mining 
Claim,  30  L.  D.  202;  Lucky  Find  Placer,  32  L.  D.  200. 

38  Aurora  Hill  Cons.  M.  Co.  v.  85  M.  Co.,  34  Fed.  515,  518,  12  Saw. 
355,  15  Morr.  Min.  Rep.  581;  Deno  v.  Griffin,  20  Nev.  249,  20  Pac. 
308,  309;  Alta  M.  &  S.  Co.  v.  Benson  M.  &  S.  Co.,  2  Ariz.  362,  16  Pac. 
565,  568;  Crane's  Gulch  M.  Co.  v.  Scherrer,  134  Cal.  350,  86  Am.  St. 
Eep.  279,  66  Pac.  487,  488,  21  Morr.  Min.  Rep.  549;  Southern  Cross 
G.  M.  Co.  V.   Sexton,   147  Cal.   758,  82  Pac.  423;   post,  §  771. 

39  Benson  M.  &  S.  Co.  v.  Alta  M.  &  S.  Co.,  145  U.  S.  428,  432, 
12  Sup.  Ct.  Rep.  877,  36  L.  ed.  762,  17  Morr.  Min.  Rep.  488.  See, 
also,  Deffeback  v.  Hawke,  115  U.  S.  392,  405,  6  Sup.  Ct.  Rep.  95,  29 
L.  ed.  423;  Southern  Cross  G.  M.  Co.  v.  Sexton,  147  Cal.  758,  82  Pac. 
423;   Batterton  v.  Douglas  M.  Co.,  20  Idaho,  760,  120  Pac.  827. 

40  Murray  v.  Polglase,  23  Mont.  401,  59  Pac.  439,  441. 

41  Southern  Cross  G.  M.  Co.  v.  Se.xton,  147  Cal.  758,  82  Pac.  423,  424. 
For  comment  on  this  case,  see  Juno  et  al.  Lode  Claims,  37  L.  D.  365, 
and  for  discussion  of  time  when  such  cancellation  becomes  effective, 
Bee  post,  §  772. 


1587  MILLSITES.  §  638 

The  commissioner  of  the  general  land  office  has 
power  to  suspend  the  entry  on  which  the  certificate  is 
founded,  by  virtue  of  his  supervisory  control  over  the 
acts  of  his  subordinates,*^  and  when  suspended  the  cer- 
tificate of  purchase  cannot  be  used  as  evidence  so  long 
as  the  suspension  continues."  He  has  also  the  power 
to  cancel  the  certificate  upon  due  notice  and  under 
proper  conditions;**  but  so  long  as  the  certificate  re- 
mains uncanceled  or  unsuspended  the  annual  labor 
need  not  be  performed. 

The  department  has  held  that  annual  labor  need  not 
be  performed  even  prior  to  entry  and  pending  patent 
proceedings  where  an  adverse  claim  or  protest  has 
been  interposed  which  prevents  the  applicant  from 
completing  his  entry,*®  but  as  we  have  heretofore  ob- 
served, the  correctness  of  this  ruling  is  extremely 
dubious  in  view  of  the  express  terms  of  the  statute.*® 

§  638.  Millsites. — Millsites  are  not  subject  to  the 
annual  labor  law.  Their  use  and  occupancy  for  pur- 
poses connected  with  mining  operations  on  the  lodes  to 
which  they  are  extralimital  adjuncts  is  all  that  is  re- 
quired. This  is  the  rule  followed  by  the  land  depart- 
ment in  relation  to  the  expenditures  required  for  patent 
purposes." 

<2  Hosmer  v.  Wallace,  47  Cal.  461.  A  full  discussion  of  the  powers 
and  duties  of  the  land   department  will  be  found  in  the  next   title. 

43  Figg  V.  Hensley,  52  Cal.  299  j  Murray  v.  Polglase,  17  Mont.  455, 
43  Pac.  505,  507. 

44  Caldwell  v.  Bush,  6  Wyo.  342,  45  Pac.  488,  489;  Parsons  v. 
Venzke,  164  U.  S.  89,  92,   17   Sup.  Ct.  Rep.  27,  41  L.  ed.  360. 

45  Marburg  Lode,  30  L.  D.  202,  211;  Lucky  Find  Placer,  32  L.  D. 
200;  Ring  v.  Montana  Loan  &  Realty  Co.,  33  L.  D.  132. 

46  Poore  V.  Kaufman,  44  Mont.  248,  119  Pac.  785,  787;  and  see, 
also,  Morrison's  Mining  Rights,  14th  ed.,  pp.  571,  572,  and  Costigan 
on  Mining  Law,  pp.  286,  287. 

4T  Commrs.  Letter,  1  Copp's  L.  0.  2;  Alta  Millsite,  8  L.  D.  195. 
See  ante,  §§  519-524. 


§  638  PERPETUATION  OF  THE  ESTATE.  1588 

It  is  difficult  to  see  how  a  millsite  can  be  developed. 
It  is  not  a  mining  claim.  It  must  be  located  on  non- 
mineral  land,  and  its  continued  existence  depends  en- 
tirely upon  its  use  in  connection  with  a  located  vein. 
We,  of  course,  have  no  reference  to  millsites  upon 
which  are  erected  custom-mills  or  reduction-works  un- 
der the  last  clause  of  section  twenty-three  hundred  and 
thirty-seven  of  the  Eevised  Statutes. 

It  is  unnecessary  to  add  anything  to  that  which  we 
have  heretofore  said  on  the  subject  of  millsites. 


CHAPTERVI. 

FOBFEITURE  OF  THE  ESTATE,  AND  ITS  PEEVENTION  BY 
RESUMPTION  OF  WORK. 

Article  I.    Abandonment  and  Forfeitube. 
II.    Resumption  op  Work. 


Article  I.    Abandonment  and  Forfeiture. 


I  642.  Circumstances  under  which 
the  locator's  estate  is 
terminated. 

§  643.  Distinction  between  aban- 
donment and  forfeiture. 

§  644.  Acts  constituting  aban- 
donment— Evidence  es- 
tablishing or  negativ- 
ing it. 


§  645. 
§  645a. 


§  646. 


Forfeiture. 

Effect  of  abandonment  of 
forfeiture  by  senior 
upon  rights  of  junior 
conflicting  locator  as  to 
conflict  area. 

Forfeiture  to  co-owners. 


§  642.  Circumstances  under  which  the  locator's  es- 
tate is  terminated. — In  the  case  of  Black  v.  Elkhorn 
Mining  Co.,  decided  by  the  supreme  court  of  the  United 
States  upon  the  subject  of  dower  in  unpatented  mining 
claims,  we  find  the  following  statement  as  to  the  nature 
of  a  locator's  title  and  the  circumstances  under  which 
it  may  be  extinguished: — 

To  sum  up:  As  to  the  character  of  the  right  which 
is  granted  by  the  United  States  to  a  locator,  we 
find, — 

(1)  That  no  written  instrument  is  necessarj^  to 
create  it.  Locating  upon  the  land  and  continuing 
yearly  to  do  the  work  provided  for  by  the  statute 
gives  to  and  continues  in  the  locator  the  right  of 
possession  as  stated  in  the  statute. 

(2)  This  right,  conditional  in  its  character,  may  be 
forfeited  by  the  failure  of  the  locator  to  do  the  neces- 
sary^ amount  of  work;  or  if,  being  one  among  several 
locators,  he  neglects  to  pay  his  share  for  the  work 

(15S9) 


§  642  ABANDONMENT  AND  FORFEITURE.  1590 

which  has  been  done  by  his  co-owners,  his  right  and 
interest  in  the  claim  may  be  forfeited  to  snch  co- 
owners  under  the  provisions  of  the  statute. 

(3)  His  interest  in  the  claim  may  also  be  forfeited 
by  his  abandonment,  with  an  intention  to  renounce 
his  right  of  possession.  It  cannot  be  doubted  that  an 
actual  abandonment  of  possession  by  a  locator  of  a 
mining  claim,  such  as  would  work  an  abandonment 
of  any  other  easement,  would  terminate  all  the  right 
of  possession  which  the  locator  then  had.^ 

In  support  of  the  last  proposition  the  court  says: — 

An  easement  in  real  estate  may  be  abandoned 
without  any  writing  to  that  effect,  and  by  any  act 
evincing  an  intention  to  give  up  and  renounce  the 
same.  If  the  locator  remained  in  possession  and 
failed  to  do  the  work  provided  for  by  the  statute, 
his  interest  would  terminate  under  such  circum- 
stances. If  he  convey  to  another  a  right  which  may  ^ 
be  thus  lost,  that  conveyance  would  seem  to  be 
equivalent  to  an  abandonment  by  him  of  all  rights 
under  the  statute.  What  could  be  better  evidence  of 
an  intention  to  abandon  than  an  actual  conveyance 
of  his  right  to  another,  ceasing  to  do  any  work 
thereon,  and  giving  up  of  his  possession  in  accord- 
ance with  his  conveyance?  The  abandonment  by 
simply  leaving  the  land  is  no  more  efficacious  than 
conveying  his  rights  and  also  leaving  possession 
without  any  intention  of  returning. 

This  characterization  of  the  nature  of  the  estate  in  a 
perfected  mining  location  does  not,  at  the  first  glance, 
seem  to  blend  harmoniously  with  other  declarations  of 
the  same  tribunal.  For  example,  that  court  has 
said : — 

1  Black  V.  Elkhorn  M.  Co.,  163  U.  S.  445,  450,  16  Sup.  Ct.  Rep.  1101, 
41  L.  ed.  221,  18  Morr.  Min.  Rep.  375;  cited  and  doctrine  restated,  Far- 
rell  V.  Lockhart,  210  U.  S.  142,  147,  28  Sup.  Ct.  Rep.  681,  52  L.  ed. 
994,  16  L.  R.  A.,  N.  S.,  162;  Swanson  v.  Kettle,  17  Idaho,  321,  105 
Pac.  1059,  1063. 


1591  TERMINATION  OF  LOCATOR'S  ESTATE.  §  642 

A  mining  claim  perfected  under  the  law  is  property 
in  the  highest  sense  of  the  term'— in  the  fullest  sense 
of  the  word.' 

A  valid  and  subsisting  location  of  mineral  lands, 
made  and  kept  up  in  accordance  with  the  provisions 
of  the  statutes  of  the  United  States,  has  the  effect  of 
a  grant  by  the  United  States  of  the  right  of  present 
and  exclusive  possession  of  the  lands  located.* 

If  the  decision  in  Black  v.  Elkhom  Mining  Company 
had  been  promulgated  by  any  court  of  less  dignity  than 
the  supreme  court  of  the  United  States,  we  might  defer- 
entially suggest  that  while  the  view  announced  upon 
the  subject  of  abandonment,  as  distinguished  from  for- 
feiture, was  undoubtedly  applicable  to  the  early  mining 
tenures  as  they  existed  prior  to  the  enactment  of  the 
federal  mining  laws,  by  legislative  construction  and 
judicial  interpretation  the  character  of  the  estate  in 
later  years  had  been  raised  to  such  a  dignity  that  it 
required  something  more  than  a  mere  parol  abandon- 
ment to  terminate  it. 

In  Bradford  v.  Morrison'  the  supreme  court  of  the 
United  States  explains  its  decision  in  Black  v.  Elk- 
hom M.  Co.  and  disclaims  any  intention  to  detract 
from  the  dignity  of  the  miner's  estate  as  defined  in  its 
earlier  decisions.  It  is  also  worthy  of  note  that  in 
stating  in  the  Bradford-Morrison  case  how  such  an 

2  Forbes  v.  Gracey,  94  U.  S.  762,  24  L.  ed.  313,  14  Morr.  Min.  Rep. 
183;  Belk  v.  Meagher,  104  U.  S.  279,  283,  26  L.  ed.  735,  1  Morr.  Min. 
Rep.  510. 

3  Manuel  v.  Wulff,  152  U.  S.  505,  510,  14  Sup.  Ct.  Rep.  651,  38  L. 
ed.  532,  18  Morr.  Min.  Rep.  85. 

4  Gwillim  V.  Donnellan,  115  U.  S.  45,  49,  5  Sup.  Ct.  Rep.  1110,  29  L. 
ed.  348,  15  Morr.  Min.  Rep.  482;  McKinley  Creek  M.  and  M.  Co.  v. 
Alaska  United  M.  Co.,  183  U.  S.  563,  571,  22  Sup.  Ct.  Rep.  84,  46  L. 
ed.  331,  21  Morr.  Min.  Rep.  730. 

6  212  U.  S.  389,  396,  29  Sup.  Ct.  Rep.  349,  53  L.  ed.,564. 


§  642  ABANDONMENT  AND   FORFEITURE.  1592 

estate  may  be  lost  the  court  says  nothing  about  aban- 
donment.    The  language  of  the  court  is  significant: — 

Of  course  [said  the  court]  if  the  conditions  subse- 
quent as  the  doing  of  the  necessary  work  were  not 
performed  the  title  would  be  subject  to  forfeiture. 

While  it  is  true  that  no  written  instrument  creating 
the  grant  is  signed  by  the  grantor,  yet  in  at  least  thir- 
teen out  of  the  fourteen  states  and  territories  subject  to 
the  federal  mining  laws,  with  the  consent  and  under 
the  sanction  of  the  federal  government,  a  record  title  is 
established.  '*A  statutory  writing  affecting  realty, 
being  in  part  the  basis  of  a  miner's  title, "^  is  required. 

While  as  between  the  government  and  the  locator 
the  title  of  the  latter  is  equitable,  the  courts  of  the  min- 
ing states  have  uniformly  held  that  as  against  every- 
one else  the  estate  was  that  of  a  freehold. 

The  supreme  court  of  the  United  States  has  said  that 
a  written  conveyance  is  not  necessary  to  the  transfer 
of  a  mining  claim,''  citing,  as  authority  for  this  doc- 
trine, an  early  California  case;^  but  ever  since  1860  the 
supreme  court  of  that  state  has,  by  a  uniform  line  of 
decisions,  held  that  a  written  instrument  was  neces- 
sary to  pass  the  title  to  a  located  mine.®  The  same 
rule  obtains  in  Montana,^"  and  we  think  we  are  justi- 

6  Pollard  V.  Shively,  5  Colo.  309,  312,  2  Morr.  Min.  Rep.  229. 

7  Union  Cons.  S.  M.  Co.  v.  Taylor,  100  U.  S.  39,  42,  25  L.  ed.  541,  5 
Morr.  Min.  Rep.  323. 

8  Table  Mt.  T.  Co.  v.  Stranahan,  20  Cal.  198,  9  Morr.  Min.  Rep.  457. 

9  GoUer  v.  Fett,  30  Cal.  481,  484,  11  Morr.  Min.  Rep.  171;  Felger  v. 
Coward,  35  Cal.  650,  652,  5  Morr.  Min.  Rep.  27;  Hardenbergh  v.  Bacon, 
33  Cal.  356,  381,  1  Morr.  Min.  Rep.  352;  Melton  v.  Lambard,  51  Cal. 
258,  260,  14  Morr.  Min.  Rep.  695;  Garthe  v.  Hart,  73  Cal.  541,  544,  15 
Pac.  93,  15  Morr.  Min.  Rep.  492;  Moore  v.  Hamerstag,  109  Cal.  122,  41 
Pac.  805,  806,  18  Morr.  Min.  R«p.  256. 

10  Hopkins  v.  Noyes,  4  Mont.  550,  2  Pac.  280,  281,  15  Morr.  Min. 
Eep.  287. 


1593  TERMINATION  OF  LOCATOR'S  ESTATE.  §  642 

fied  in  making  the  statement,  that  at  the  present  time, 
in  every  state  and  territory  subject  to  the  federal  min- 
ing laws,  a  perfected  mining  location  is  treated  as  real 
estate,  and  that  the  same  formalities  are  required  to 
transmit  the  title  as  in  case  of  other  real  property. 
The  estate  is  treated  as  a  legal  one.  It  will  support 
the  action  of  ejectment.  It  may  be  mortgaged  and 
generally  dealt  with  as  if  the  absolute  fee  were  vested 
in  the  locator.^^ 

A  parol  agreement  for  its  transfer  cannot  be  en- 
forced.^^ 

A  conveyance  is  not  an  abandonment.  Abandon- 
ment terminates  a  right.     A  conveyance  transmits  it.^^ 

Upon  abandonment  of  a  mining  claim  the  land  falls 
back  to  the  public  domain.  Such  abandonment  inures 
to  the  benefit  of  no  individual  except  a  relooator.^* 

The  supreme  court  of  New  Mexico  holds  that  a  con- 
veyance is  equivalent  to  an  abandonment.^^  This  is 
quite  true  in  a  limited  sense,  as  there  is  an  estoppel 
arising  from  a  conveyance.  But  a  conveyance  is  not 
an  abandonment  because  it  transmits  title  to  a  particu- 
lar person  and  an  abandonment  does  not  have  this 
effect.^^ 

11  Ante,  §  539. 

12  Eeagan  v,  McKibben,  1  S.  D.  270,  76  N.  W.  943,  946,  19  Morr. 
Min.  Rep.  556. 

13  Richardson  v.  McNulty,  24  Cal.  339,  345,  1  Morr.  Min.  Rep.  11; 
Butte  Hardware  Co.  v.  Frank,  25  Mont.  344,  65  Pac.  1,  3;  Merced  Oil 
Co.  V.  Patterson,  153  Cal.  624,  96  Pac.  90,  91;  Miller  v.  Chrisman,  140 
Cal.  440,  98  Am.  St.  Rep.  63,  73  Pac.  1083,  1086,  74  Pac.  444;  Weed  v. 
Snook,  144  Cal.  439,  77  Pac.  1023,  1025. 

1*  Badger  G.  M.  Co.  v.  Stockton  G.  &  C.  M.  Co.,  139  Fed.  838,  841; 
Brown  v.  Gurney,  201  U.  S.  184,  192,  26  Sup.  Ct.  Rep.  509,  50  L.  ed. 
717. 

15  McAlister  v.  Hutchinson,  12  N.  M.  Ill,  75  Pac.  41,  42. 

16  Sharkey  v.  Candiani,  48  Or.  112,  85  Pac.  219,  224,  7  L.  R.  A., 
N.  S.,  791. 


§  642  ABANDONMENT  AND  FORFEITURE.  1594 

Judge  Field,  while  on  the  supreme  bench  of  Califor- 
nia, announced  the  doctrine  that, — 

The  right  of  the  occupant  originating  in  mere  pos- 
session may,  as  a  matter  of  course,  be  lost  by  aban- 
donment. Where  there  is  title,  to  preserve  it  there 
need  be  no  continuance  of  possession,  and  the  aban- 
donment of  the  latter  cannot  affect  the  rights  held  by 
virtue  of  the  former." 

And  the  supreme  court  of  the  United  States  has  said 
that, — 

There  is  nothing  in  the  act  of  congress  which 
makes  actual  possession  any  more  necessary  for  the 
protection  of  the  title  acquired  to  such  a  claim  by  a 
valid  location,  than  it  is  for  any  other  grant  from  the 
United  States." 

The  abandonment  of  possession  is  one  thing;  the 
abandonment  of  a  right  of  exclusive  possession  and 
enjoyment  granted  by  a  statute  which  is  a  muniment 
of  title  is  another.  If  the  estate  of  the  locator  is  a  legal 
estate,  it  can  only  be  divested  by  abandonment  when 
the  circumstances  are  sufficient  to  raise  an  estoppel; 
but  when  such  abandonment  is  not  accompanied  by  cir- 
cumstances sufficient  to  raise  an  estoppel,  no  matter 
how  formal  the  abandonment  may  be,  if  it  fall  short  of 
a  legal  deed  of  conveyance,  it  has  no  effect  whatsoever 
upon  the  title." 

There  is  another  consideration  which  may  add  some 
weight  to  the  contention  that  such  an  estate  cannot  be 
lost  or  terminated  by  mere  parol  abandonment.  The 
statute  which  creates  and  authorizes  the  grant  specifies 

"  Ferris  v.  C!oover,  10  Cal.  589,  632. 

18  Belk  V.  Meagher,  104  U.  S.  279,  283,  26  L.  ed.  735,  1  Morr.  Min. 
Rep.   510. 

19  Tiedeman  on  Real  Property,  §  439;  3  Washburn  on  Real  Property, 
p.  65. 


1595  TERMINATION  OP  LOCATOR'S  ESTATE.  §  642 

the  conditions  under  which  the  estate  granted  shall  be 
forfeited.  The  question  may  be  plausibly  asked,  Can 
the  estate  be  lost  or  terminated  lawfully  in  any  other 
manner  or  for  any  other  cause  than  that  specified  in  the 
statute? 

The  answer  to  this,  in  the  light  of  the  authority, 
seems  obvious.  The  ownership  of  an  inchoate  right 
may  be  abandoned,-^  but  the  abandonment  does  not 
become  effectual  except  in  the  presence  of  a  relocator. 
This  we  understand  to  be  the  doctrine  specifically 
sanctioned  by  the  supreme  court  of  the  United  States,'^ 
and  in  that  sense  is  practically  equivalent  to  the  for- 
feiture provided  by  the  statute  where  the  ground  is 
relocated  after  the  original  locator  has  failed  to  per- 
form his  work  or  has  expressly  or  by  implication  aban- 
doned all  rights  to  his  location. 

In  a  decision  by  the  supreme  court  of  Oregon  we 
find  a  somewhat  involved  sentence  from  which  an 
inference  might  arise  that  a  patented  claim  might  be 
abandoned,  and  the  area  being  restored  to  the  public 
domain  could  be  relocated."  But  we  do  not  think  the 
court  intended  such  an  inference.  The  divestiture  of 
a  vested  legal  title  by  abandonment  is  unknown  to  the 
common  law  unless  it  result  from  some  estoppel  or 
adverse  possession  under  a  statute  of  limitations.^^ 

The  United  States  circuit  court  for  the  western  dis- 
trict of  Pennsylvania  thus  defines  abandonment: — 

20  Madison  v.  Octave  Oil  Co.,  154  Cal.  768,  99  Pac.  176,  178;  Swan- 
son  V.  Kettler,  17  Idaho,  321,  105  Pac.  1059,  1064. 

21  Brown  v.  Gurney,  201  U.  S.  184,  192,  26  Sup.  Ct.  E*p.  509,  50  L. 
ed.  717;  Farrell  v.  Lockhart,  210  U.  S.  142,  147,  28  Sup.  Ct.  Rep.  681, 
52  L.  ed.  994,  16  L.  R.  A.,  N.  S.,  162. 

22  Sharkey  v.  Candiani,  48  Or.  112,  85  Pac.  219,  223,  7  L.  R.  A., 
N.  S.,  791. 

23  Tennessee  Oil,  Gas  &  M.  Co.  v.  Brown,  131  Fed.  696,  699,  65  C.  C. 
A.  524,  and  cases  cited. 


§  643  ABANDONMENT  AND  FORFEITURE.  1596 

Legally  defined  it  may  be  said  to  be  the  giving 
up  or  relinquishment  of  property  to  wbicli  a  person 
is  entitled  with  no  purpose  of  again  claiming  it  and 
without  concern  as  to  who  may  subsequently  take 

possession It  is  the  voluntary  forsaking  or 

throwing  away  of  property  leaving  it  open  to  the 

first-comer It  may  be  a  question  how  far  a 

legal  vested  title  to  a  corporeal  hereditament  can 
ever  be  lost  by  mere  abandonment  or  neglect,  .  .  •  • 
although  it  is  held  that  it  may  be  in  Holmes  v.  Eail- 
road,  8  Am.  Law  Rep.,  0.  S.,  716,  and  seems  to  be 
recognized  as  possible  in  Venture  Oil  Co.  v.  Fretts, 
152  Pa.  451,  25  Atl.  732,  although  by  nothing  short 
of  the  statute  of  limitations  as  is  there  said.  But 
with  regard  to  inchoate  and  particularly  mining  and 
other  similar  rights  and  privileges,  the  doctrine  is 
well  established ^* 

§  643.  Distinction  between  abandonment  and  for- 
feiture.— Abandonment  is  always  a  question  of  inten- 
tion.^^ 

24  Wilmore  Coal  Co.  v.  Brown,  147  Fed.  931,  943;  affirmed  on  ap- 
peal, Brown  v.  Wilmore  Coal  Co.,  153  Fed.  143,  82  C.  C.  A.  295. 

25  Omar  v.  Soper,  11  Colo.  380,  7  Am.  St.  Eep.  246,  18  Pac.  443,  448, 
15  Morr.  Min.  Kep.  496;  Mallett  v.  Uncle  Sam  M.  Co.,  1  Nev.  156, 
188,  204,  90  Am.  Dec.  484,  495,  1  Morr.  Min.  Rep.  17;  Weill  v.  Lucerne 
M.  Co.,  11  Nev.  200,  3  Morr.  Min.  Eep.  372;  Bell  v.  Bed  Rock  T.  &  M. 
Co.,  36  Cal.  214,  218,  1  Morr.  Min.  Rep.  45;  Stone  v.  Geyser  Q.  M.  Co., 
52  Cal.  315,  318,  1  Morr.  Min.  Eep.  59;  Derry  v.  Ross,  5  Colo.  295,  1 
Morr.  Min.  Eep.  1;  St.  John  v.  Kidd,  26  Cal.  263,  272,  4  Morr.  Min. 
Rep.  454;  Waring  v.  Crow,  11  Cal.  367,  371,  5  Morr.  Min.  Eep.  204; 
Davis  V.  Butler,  6  Cal.  510,  511,  1  Morr.  Min.  Eep.  7;  Richardson  v. 
McNulty,  24  Cal.  339,  343,  1  Morr.  Min.  Rep.  11;  Morenhaut  v.  Wilson, 
52  Cal.  263,  267,  1  Morr.  Min.  Rep.  53;  Marshall  v.  Harney  Peak  T. 
M.  Co.,  1  S.  D.  350,  47  N.  W.  290,  295;  Myers  v.  Spooner,  55  Cal.  257, 
9  Morr.  Min.  Rep.  519;  Dodge  v.  Marden,  7  Or.  456,  1  Morr.  Min. 
Rep.  63;  Trevaskis  v.  Peard,  111  Cal.  599,  44  Pac.  246,  248;  Doe  v. 
Waterloo  M.  Co.,  70  Fed.  455,  458,  17  C.  C.  A.  190,  18  Morr.  Min.  Rep. 
265;  Justice  M.  Co.  v.  Barclay,  82  Fed.  554,  559;  Valcalda  v.  Silver  Peak 
Mines,  86  Fed.  90,  95;  McCarthy  v.  Speed,  11  S.  D.  362,  77  N.  W.  590, 
593,  50  L.  R.  A.  184,  19  Morr.  Min.  Rep.  615;   Kinney  v.  Fleming,  6 


1597         ABANDONMENT  AND  FORFEITURE  DISTINGUISHED.        §  643 

In  forfeiture  the  element  of  intent  is  not  involved. 
It  rests  entirely  upon  the  statute,  and  involves  only  the 
question,  whether  the  terms  of  the  law  have  been  com- 
plied with." 

Abandonment  operates  instanter."  Where  a  miner 
gives  up  his  claim  and  goes  away  from  it  without  any 
intention  of  returning,  and  regardless  of  what  may 
become  of  it,  or  who  may  appropriate  it,  an  abandon- 
ment takes  place,  and  the  property  reverts  to  its  orig- 
inal status  as  part  of  the  unoccupied  public  domain. 
It  is  then  publici  juris,  and  open  to  location  by  the  first- 
comer." 

Ariz.  263,  56  Pac.  723,  20  Morr.  Min.  Rep.  13 ;  McCann  v.  McMillan.  129 
Cal.  350,  62  Pac.  31,  21  Morr.  Min.  Rep.  6;  Buffalo  Z.  &  C.  Co.  v. 
Crump,  70  Ark.  525,  91  Am.  St.  Rep.  87,  69  S.  W.  572,  576,  22  Morr. 
Min.  Rep.  276;  Miller  v.  Hamley,  31  Colo.  495,  74  Pac.  980,  982;  Conn 
V.  Oberto,  32  Colo.  313,  76  Pac.  369,  370;  Peoria  &  Colorado,  M.  &  M. 
Co.  V.  Turner,  20  Colo.  App.  474,  79  Pac.  915,  917;  Moffatt  v.  Blue  River 
Gold  Ex.  Co.,  33  Colo.  142,  80  Pac.  139,  141;  Ritter  v.  Lynch,  123  Fed. 
930,  935;  Peachy  v.  Gaddis  (Ariz.),  127  Pac.  739,  741;  King  Solomon 
T.  &  D.  Co.  V.  Mary  Verna  M.  Co.,  22  Colo.  App.  528,  127  Pac.  129,  131; 
Peachy  v.  Frisco  Gold  Mines  Co.,  204  Fed.  659,  668. 

26  St.  John  V.  Kidd,  26  Cal.  263,  272,  4  Morr.  Min.  Rep.  454;  Bell 
V.  Bed  Rock  T.  &  M.  Co.,  36  Cal.  214,  218,  1  Morr.  Min.  Rep.  45; 
McCarthy  v.  Speed,  11  S.  D.  362,  77  N.  W.  590,  593,  50  L.  R.  A.  184, 
19  Morr.  Min.  Rep.  615;  McKay  v.  McDougall,  25  Mont.  258,  87  Am. 
St.  Rep.  395,  64  Pac.  669,  670. 

27  Brown  v.  Gurney,  201  U.  S.  184,  192,  26  Sup.  Ct.  Rep.  509,  50 
L.  ed.  717;  National  M.  &  M.  Co.  v.  Piccolo,  54  Wash.  617,  104  Pac. 
128,  129,  reversed  on  rehearing  but  not  on  this  point,  57  Wash.  572, 
107  Pac.  353. 

28  Derry  v.  Ross,  5  Colo.  295,  1  Morr.  Min.  Rep.  1;  Davis  v.  Butler, 
6  Cal.  510,  511,  1  Morr.  Min.  Rep.  7;  Richardson  v.  McNulty,  24  Cal. 
339,  343,  1  Morr.  Min.  Rep.  11;  Mallett  v.  Uncle  Sam  M.  Co.,  1  Nev. 
(156)  188,  90  Am.  Dec.  484,  1  Morr.  Min.  Rep.  17;  Morenhaut  v. 
Wilson,  52  Cal.  263,  267;  St.  John  v.  Kidd,  26  Cal.  263,  272,  4  Morr. 
Min.  Rep.  454;  Haikrader  v.  Carroll,  76  Fed.  474,  475;  McKay  v.  Mc- 
Dougall, 25  Mont.  258,  87  Am.  St.  Rep.  395,  64  Pac.  669;  Miller  v. 
Hamley,  31  Colo.  495,  74  Pac.  980,  982;  Conn  v.  Oberto,  32  Colo.  313, 
76  Pa«.  369,  370;   Davis  v.  Dennis,  43  Wash.  54,  85   Pac.  1079,   1080; 


§  643  ABANDONMENT  AND   FORFEITURE.  1598 

Forfeiture  is  not  complete  until  someone  else  enters 
with  intent  to  relocate  the  property." 

Abandonment  may  occur  at  any  time,  even  after  full 
compliance  with  the  law  as  to  performance  of  annual 
labor.  Forfeiture  will  only  ensue  upon  the  lapse  of 
the  statutory  period,  upon  failure  to  represent  the 
claim,  and  upon  entry  and  location  by  another.  An 
exception  to  this  rule  is  noted  in  Alaska,  where  a  fail- 
ure to  perform  the  necessary  work  terminates  the 
estate  without  the  intervention  of  a  relocator.^" 

Abandonment  may  be  proved  under  the  general 
issue.^^ 

Forfeiture  as  a  defense  to  an  action  must  be  spe- 
cially pleaded,^^  provided  the  pleadings  are  sufficiently 

Farrell  v.  Lockhart,   210  U.   S.   142,   147,  28   Sup.  Ct.  Rep.   681,  52   L. 
ed.  994,  16  L.  R.  A.,  N.  S.,  162;  Street  v.  Delta  M.  Co.,  42  Mont.  371,  ^ 
,112  Pae.  701,  705. 

29  Little  Gunnell  M.  Co.  v.  Kimber,  1  Morr.  Min.  Rep.  536,  539,  Fed. 
Cas.  No.  8402;  Lakin  v.  Sierra  Buttes  G.  M.  Co.,  25  Fed.  337,  343,  11 
Saw.  231,  241;  McCarthy  v.  Speed,  11  S.  D.  362,  77  N.  W.  590,  593,  50 
L.  R.  A.  184,  19  Morr.  Min.  Rep.  615;  Beals  v.  Cone,  27  Colo.  473,  83 
Am.  St.  Rep.  92,  62  Pac.  948,  958,  20  Morr.  Min.  Rep.  591;  Wilson  v. 
Freeman,  29  Mont.  470,  75  Pac.  84,  85,  68  L.  R.  A.  833,  and  note;  Field 
V.  Tanner,  32  Colo.  278,  75  Pac.  916;  Cunningham  v.  Pirrung,  9  Ariz. 
288.  80  Pac.  329,  331;  National  M.  &  M.  Co.  v.  Piccolo,  54  Wash.  617, 
104  Pac.  128,  130;  reversed  on  rehearing  but  not  on  the  point,  57  Wash. 
572,  107  Pac.  353;  Bingham  Amalgamated  Copper  Co.  v.  Ute  Copper 
Co.,  181  Fed.  748,  749. 

80  Thatcher  v.  Brown,  190  Fed.  708,  711,  111  C.  C.  A.  436. 

31  Wilson  V.  Cleaveland,  30  Cal.  192,  200;  BeU  v.  Bed  Rock  T.  &  M. 
Co.,  36  Cal.  214,  218,  1  Morr.  Min.  Rep.  45;  BeU  v.  Brown,  22  Cal.  671, 
681,  5  Morr.  Min.  Rep.  540;  Morenhaut  v.  Wilson,  52  Cal.  263,  268; 
Trevaskis  v.  Peard,  111  Cal.  599,  44  Pac.  246,  247. 

The  supreme  court  of  Montana,  while  not  undertaking  to  decide  the 
question,  intimated  that  it  would  be  safer  to  plead  abandonment.  Mc- 
Shane  v.  Kenkle,  18  Mont.  208,  56  Am.  St.  Rep.  578,  44  Pac.  979,  982, 
33  L.  R.  A.  851. 

32  Renshaw  v.  Switzer,  6  Mont.  464,  13  Pac.  127,  128,  15  Morr. 
Min.  Rep.  345;  Garfield  M.  &  M.  Co.  v.  Hammer,  6  Mont.  53,  8  Pac. 
153,  155;  Morenhaut  v.  Wilson,  52  Cal.  263,  268;  Mattingly  v.  Lewisohn, 


1599         ABANDONMENT  AND  FORFEITURE  DISTINGUISHED.        §  643 

certain  as  to  description  and  identification  as  to  spe- 
cific title  claimed.^^ 

The  rule  as  to  necessity  for  pleading  forfeiture  does 
not  obtain  necessarily  in  proceedings  to  determine 
adverse  claims  under  section  twenty-tliree  hundred  and 
twenty-six  of  the  Revised  Statutes,  where  the  title  of 
each  party  is  put  in  issue.^*  Nor  is  the  plaintiff  in 
the  case  in  other  forms  of  actions  compelled  to  antici- 
pate the  defense  of  his  adversary  and  allege  forfeiture 
of  a  claim  which  the  defendant  may  set  up.  In  states 
where  no  special  replication  is  required  to  be  filed  to 
the  answer,  and  where  the  general  allegation  of  owner- 
ship is  sufficient  to  support  an  action  involving  dis- 
puted claims  to  raining  locations,^^  the  counter-allega- 
tions of  ownership  in  the  answer  are  deemed  to  be 

13  Mont.  508,  35  Pac.  Ill,  114;  Bishop  v.  Baisley,  28  Or.  119.  41  Pac. 
936,  939;  Wulf  v.  Manuel,  9  Mont.  276,  279,  286,  23  Pac.  723;  S.  C, 
reversed  on  appeal,  but  not  on  this  point,  152  U.  S.  505,  14  Sup.  Ct. 
E«p.  651,  38  L.  ed.  532,  18  Morr.  Min.  Eep.  85;  Altoona  Q.  M.  Co.  v. 
Integral  Q.  M.  Co.,  114  Cal.  100,  45  Pae.  1047,  1048,  18  Morr.  Min. 
Rep.  410;  Power  v.  Sla,  24  Mont.  243,  61  Pac.  468,  471;  Emerson  v.  Mc- 
Whirter,  133  Cal.  510,  65  Pac.  1036,  1038,  21  Morr.  Min.  Eep.  470;  S.  C, 
in  error  sub  nom.,  Yosemite  M.  Co.  v.  Emerson,  208  U.  S.  25,  28  Sup. 
Ct.  Rep.  196,  52  L.  ed.  374;  Copper  Mt.  M.  &  S.  Co.  v.  Butte  &  Corbin 
C.  &  S.  Co.,  39  Mont.  487,  133  Am.  St.  Rep.  595,  104  Pac.  540;  DuRcan 
V.  Eagle  Rock  G.  M.  &  R.  Co.,  48  Colo.  569,  139  Am.  St.  Rep.  288,  111 
Pac.  588. 

38  Harper  v.  Hill,  159  Cal.  250,  113  Pac.  163,  166,  1  Water  &  Min. 
Cas.  585. 

34  Steel  V.  Gold  L^ad  M.  Co.,  18  Nev.  80,  1  Pac.  448,  450,  15  Morr. 
Min.  Rep.  293;  Merchants'  Exchange  Bank  v.  McKeown,  60  Or.  325, 
119  Pac.  334. 

As  to  what  is  necessary  to  be  alleged  and  proved  in  this  class  of 
actions  and  the  relationship  between  the  state  courts  and  the  land  depart- 
ment, see  subject  of  "Adverse  Claims"  in  a  succeeding  chapter. 

35  Contreras  v.  Merck,  131  Cal.  211,  63  Pac.  336,  337;  Harris  v. 
Kellogg,  117  Cal.  484,  49  Pac.  708,  709;  Holmes  v.  Salamania  G.  M. 
Co.,  5  Cal.  App.  659,  91  Pac.  160. 


§  644  ABANDONMENT  AND  FORFEITURE.  1600 

denied,  and  forfeiture  may  be  proved  under  the  gen- 
eral issue.^® 

Where,  however,  either  abandonment  or  forfeiture 
are  relied  upon,  the  burden  of  proof  rests  with  the 
party  asserting  it." 

An  exception,  however,  to  this  last  rule  may  be 
noted.  Where  a  party  shows  that  no  work  was  per- 
formed by  his  adversary  within  the  limits  of  a  claim 
he  makes  out  a  prima  facie  case,  and  thereafter,  should 
such  adversary  depend  upon  labor  done  outside  the 
claim,  the  burden  is  cast  upon  him  of  proving  the  per- 
formance of  such  labor  and  proving  that  its  reasonable 
tendency  is  to  benefit  the  claim.^^ 

§  644.  Acts  constituting  abandonment — Evidence 
establishing  or  negativing  it. — Ordinarily,  abaudon- 

36  Goldberg  v.  Bruschi,  146  Cal.  708,  81  Pac.  23,  24. 

37  Oreamuno  v.  Uncle  Sam  M.  Ck).,  1  Nev.  215,  1  Morr.  Min.  Eep.  32; 
Quigley  v.  Gillett,  101  Cal.  462,  35  Pac.  1040,  1042,  18  Morr.  Min. 
Eep.  68;  Colman  v.  Clements,  23  Cal.  245,  248,  5  Morr.  Min.  Rep.  247; 
Bishop  V.  Baisley,  28  Or.  119,  41  Pac.  936,  939;  Johnson  v.  Young,  18 
Colo.  625,  34  Pac.  173;  Harris  v.  Kellogg,  117  Cal.  484,  49  Pac.  708, 
709;  Axiom  M.  Co.  v.  White,  10  S.  D.  198,  72  N.  W.  462,  463;  Dibble 
V.  Castle  Chief  G.  M.  Co.,  9  S.  D.  618,  70  N.  W.  1055,  1056;  Reals  v 
Cone,  27  Colo.  473,  83  Am.  St.  Rep.  92,  62  Pac.  948,  958,  20  Morr. 
Min.  Rep.  591;  Sherlock  v.  Leighton,  9  Wyo.  297,  63  Pac.  580,  934; 
Haynes  v.  Briscoe,  29  Colo.  137,  67  Pac.  156,  157;  Buffalo  Z.  &  C. 
Co.  V.  Crump,  70  Ark.  525,  91  Am.  St.  Rep.  87,  69  S.  W.  572,  576,  22 
Morr.  Min.  Rep.  276;  Callahan  v.  James,  141  Cal.  291,  74  Pac.  853, 
854;  Field  v.  Tanner,  32  Colo.  278,  75  Pac.  916,  918;  Cunningham  v, 
Pirrung,  9  Ariz.  288,  80  Pac.  329,  331;  Goldberg  v.  Bruschi,  146  Cal. 
708,  81  Pac.  23,  24;  Gear  v.  Ford,  4  Cal.  App.  556,  88  Pac.  600,  602; 
Walton  V.  Wild  Goose  M.  &  T.  Co.,  123  Fed.  209,  219,  60  C.  C.  A.  155, 
22  Morr.  Min.  Rep,  622;  McCulloch  v.  Murphy,  125  Fed.  147,  150; 
Whalen  Consol.  Copper  Co.  v.  Whalen,  127  Fed.  611;  Wailes  v.  Davies, 
158  Fed.  667,  669;  S.  C,  on  appeal,  164  Fed.  397,  90  C.  C.  A.  385. 

38  Sherlock  v.  Leighton,  9  Wyo.  297,  63  Pac.  580,  934;  Copper  Mt. 
M.  &  S.  Co.  V.  Butte  &  Corbin  Cons.  C.  &  S.  M.  Co.,  39  Mont.  487,  133 
Am.  St.  Rop.  595,  104  Pac.  540,  542. 


1601  ACTS  CONSTITUTING  ABANDONMENT.  §  644 

ment  is  a  question  of  fact  to  be  determined  by  the 
jury,^'  althougb,  under  certain  conditions,  it  may  be- 
come a  question  of  law  to  be  declared  by  the  court, 
particularly  where  the  facts  are  undisputed/*'  No 
arbitrary  rule  can  be  laid  down  which  will  satisfy  all 
cases.  The  question  being  one  purely  of  intent,  the 
fact  is  to  be  determined  by  the  acts  and  conduct  of  the 
party.  It  may  be  express  or  implied;  it  may  be 
effected  by  a  plain  declaration  of  intention  to  aban- 
don;" and  it  may  be  inferred  from  acts  or  failures  to 
act,  so  inconsistent  with  an  intention  to  retain  it,  that 
the  unprejudiced  mind  is  convinced  of  the  renuncia- 
tion." 

An  abandonment  may  be  effected  by  an  instrument 
of  relinquishment  filed  in  the  land  office  even  after 
entry  made  in  the  patent  proceeding.  When  made  it 
takes  effect  from  the  date  of  filing,  not  from  the  date  of 
the  order  canceling  the  entry." 

Upon  a  question  of  abandonment,  as  upon  a  ques- 
tion of  fraud,  a  wide  range  is  allowed,  for  it  is  gener- 
ally only  from  facts  and  circumstances  that  the  truth 
is  to  be  discovered,  and  both  parties  should  be  allowed 
to  prove  any  fact   or  circumstance  from  which  any 

39  Lockhart  v.  Wills,  9  N.  M.  263,  50  Pac.  318,  320;  McCann  v.  Mc- 
Millan, 129  Cal.  350,  62  Pac.  31,  21  Morr.  Min.  Uep.  6;  Taylor  v. 
Middleton,  67  Cal.  656,  8  Pac.  594,  595,  15  Morr.  Min.  Eep.  284; 
Myers  v.  Spooner,  55  Cal.  257,  260,  9  Morr.  Min.  Eep.  519. 

*o  Wilmore  Coal  Co.  v.  Brown,  147  Fed.  931,  943 ;  affirmed  on  appeal, 
153  Fed.  143,  82  C.  C.  A.  295. 

41  Conn  V.  Oberto,  32  Colo.  313,  76  Pac.  369,  370;  Oberto  v.  Smith, 
37  Colo.  21,  86  Pac.  86;  Brown  v.  Gurney,  201  U.  S.  1S4,  192,  26  Sup. 
Ct.  Rep.  509,  50  L.  ed.  717. 

*2  North  American  Exploration  Co.  v.  Adams,  104  Fed.  404,  405,  45 
C.  C.  A.  185. 

43  Gurney  v.  Brown,  32  Colo.  472,  77  Pac.  357,  359;  Brown  v.  Gurney, 
201  U.  S.  184,  193,  26  Sup.  Ct.  Rep.  509,  50  L.  ed.  717. 
Lindley  on  M. — 101 


§  644  ABANDONMENT  AND  FORFEITURE.  1602 

aid  for  tlie  solution  of  the  question  can  be  derived.** 
The  animus  revertendi  is  the  simple  test.*^  There 
must  be  a  leaving  of  the  claim  without  any  intention 
of  returning  or  making  any  further  use  of  it,  to  sus- 
tain the  charge  of  abandonment.  The  leaving  having 
been  shown,  it  is  competent  for  the  opposite  party  to 
show  any  acts  explaining  it.*^ 

If  tools  or  mining  implements  are  left  on  the  ground, 
this  fact  would  be  a  circumstance  negativing  the  idea 
of  abandonment.*^ 

The  employment  of  a  watchman,  although  his  salary 
might  not  be  an  element  to  be  considered  in  the  compu- 
tation of  annual  labor,  may  be  evidence  to  negative 
abandonment  and  establish  possession.** 

Mere  failure  by  one  colocator  to  contribute  his  pro- 
portion of  the  expense  of  performing  assessment  work^ 
does  not  deprive  him  of  his  interest  in  the  property,*^ 
and  would  not  be  conclusive  evidence  of  an  intention 
to  abandon,  although  it  is  a  circumstance  which  may 
be  considered  in  connection  with  others.°° 

Permission  given  to  others  to  relocate  operates  as  an 
abandonment." 

*i  Willson  V.  Cleveland,  30  Cal.  192,  201;  Bell  v.  Bed  Rock  T.  &  M. 
Co.,  36  Cal.  214,  218,  1  Morr.  Min.  Rep.  45. 

45  Stone  V.  Geyser  Q.  M.  Co.,  52  Cal.  315,  318,  1  Morr.  Min.  R«p.  59; 
Valealda  v.  Silver  Peak  Mines,  86  Fed.  90,  95.  See  Kinney  v.  Fleming, 
6  Ariz.  263,  56  Pac.  723,  724,  20  Morr.  Min.  R«p.  13;  Buffalo  Z.  &  C. 
Co.  V.  Crump,  70  Ark.  525,  91  Am.  St.  Rep.  87,  69  S.  W.  572,  576,  22 
Morr.  Min.  Rep.  276. 

«  Bell  V.  Bed  Rock  T.  &  M.  Co.,  36  Cal.  214,  218,  1  Morr.  Min.  Rep. 
45;  Ritter  v.  Lynch,  123  Fed.  930,  935. 

47  Harkness  v.  Burton,  39  Iowa,  101;  S.  C,  on  appeal,  9  Morr.  Min. 
Rep.  318;  Morenhaut  v.  Wilson,  52  Cal.  263,  267,  1  Morr.  Min.  Rep.  53. 

48  Justice  M.  Co.  v.  Barclay,  82  Fed.  554,  562. 

49  Faubel  v.  McFarland,  144  Cal.  717,  78  Pac.  261,  262. 

60  Oreamuno  v.  Uncle  Sam  M.  Co.,  1  Nev.  215,  1  Morr.  Min.  Rep. 
32;  Waring  v.  Crovr,  11  Cal.  367,  372,  5  Morr.  Min.  Rep.  204. 

61  Conn  V.  Oberto,  32  Colo.  313,  76  Pac.  369,  370. 


1603  ACTS  CONSTITUTING  ABANDONMENT.  §  644 

Lapse  of  time,  absence  from  the  ground,  or  failure 
to  work  it  for  any  definite  period,  unaccompanied  by- 
other  circumstances,  are  not  evidence  of  abandon- 
ment." 

An  erroneous  patent  sur\'ey,  if  corrected  before  pat- 
ent, does  not  operate  as  an  abandonment  of  area  im- 
properly omitted  by  the  surveyor.^^ 

An  original  application  for  patent  which  expressly 
excludes  a  certain  conflict  area  of  land  is  not  in  itself 
such  an  abandonment  or  waiver  of  the  applicant's 
right  thereto,  as  to  preclude  his  filing  a  supplemental 
application  covering  such  tract." 

A  party  owning  a  mining  claim  may,  on  application 
for  patent,  exclude  land  covered  by  an  adverse  claim 
and  take  patent  for  the  land  not  in  conflict,  without 
waiving  his  possessoiy  right  to  the  remainder." 

Even  in  the  absence  of  any  adverse  claim  it  would 
seem  that  a  claimant  could  apply  for  a  patent  for  a 
part  of  his  claim  without  waiving  his  right  to  the  re- 
mainder, although  the  part  applied  for  included  the 
discovert"  and  workings,  particularly  where  he  retained 
possession  and  performed  work  on  the  part  not  applied 
for ;  °^  or  when  given  the  right  to  elect  as  to  which  of 
two  tracts  segregated  by  conflicting  areas  excepted  he 

62  Mallett  V.  Uncle  Sam  M.  Co.,  1  Xev.  (18S)  157,  90  Am.  Dec.  484, 
1  Morr,  Min.  Eep.  17;  Wade's  Am.  Min.  Law,  §  33;  Seamen  v.  Vawdrey, 
16  Ves.  Jr.  390 ;  S.  C,  13  Morr.  Min.  Rep.  62 ;  Partridge  v.  McKinney, 
10  Cal.  181,  183,  1  Morr.  Min.  Rep.  185;  Dodge  v.  Marden,  7  Or.  456; 
S.  C,  1  Morr.  Min.  Rep.  63;  Buffalo  Z.  &  C.  Co.  v.  Crump.  70  Ark. 
525,  91  Am.  St.  Rep.  87,  69  S.  W.  572,  577.  22  Morr.  Min.  Rep.  276; 
Valcalda  v.  Silver  Peak  Mines,  86  Fed.  90,  95;  McCarthy  v.  Speed,  11 
S.  D.  362,  77  N.  W.  590,  593,  50  L.  R.  A.  184,  19  Morr    Min.  Rep.  615. 

53  Basin  M.  &  C.  Co.  v.  White,  22  Mont.  147,  55  Pac.  1049,  1050. 

64  Fox  V.  Mutual  M.  &  M.  Co.,  31  L.  D.  59. 

66  Black  Queen  Lode  &  Excelsior  Lode,  22  L.  D.  343;  Branagan  v. 
Dulaney,  2  L.  D.  744,  11  C.  L.  0.  67. 

66  Miller  v.  Hamley,  31  Colo.  495,  74  Pac.  980,  982. 


§  644  ABANDONMENT  AND   FORFEITURE.  1604 

will  take  patent  for,  such  election  does  not  necessarily 
extinguish  his  location  rights  as  to  the  other  tract." 

Where,  after  the  filing  of  an  adverse  claim,  and  dur- 
ing the  pendency  of  an  action  to  establish  the  same,  the 
adverse  claimant  filed  an  application  with  the  land 
department  and  obtained  a  patent  for  part  of  the  claim 
not  in  conflict  with  the  prior  patent  applicant,  the 
obtaining  of  such  a  patent  did  not  operate  as  a  waiver 
of  his  adverse  claim.^® 

A  patent  is  not  essential  to  the  enjoyment  of  a  min- 
ing claim  held  under  a  valid  location;  hence  the  failure 
of  a  mineral  applicant  to  prosecute  his  application  for 
patent  is  not  in  itself  an  abandonment  of  the  claim.^® 

Mere  amendment  of  a  location  is  not  an  abandon- 
ment of  the  original.®"  Nor  is  an  attempted  relocation 
by  the  owner,  if  the  relocation  is  invalid." 

The  declarations  of  a  party  against  his  own  interest, 
accompanying  his  removal  from  the  claim,  would  cer- 
tainly be  admissible  to  show  intent,  and  this  independ- 
ent of  the  fact  that  others  acted  upon  such  declara- 
tions, which  would  involve  the  element  of  estoppel. 
Estoppel  in  pais  does  not  constitute  an  element  in 
abandonment,  nor  is  it  one  of  the  circumstances  from 
which  an  abandonment  may  be  found." 

It  has  been  held  that,  when  the  question  of  abandon- 
ment is  in  issue,  the  declarations  in  his  own  favor, 
made  py  the  party  against  whom  it  is  alleged,  negativ- 
ing any  intention    to    abandon,  may  be  admitted  in 

67  Peoria  and  Colorado  M.  &  M.  Co.  v.  Turner,  20  Colo.  App.  474, 
79  Pac.  915,  917. 

58  Maekay  v.  Fox,  121  Fed.  487,  490,  57  C.  C.  A.  439. 
69  Coleman  v.  McKenzie,  28  L.  D.  348. 

60  A7ite,  §  398. 

61  Temescal  O.  &  M.  Co.  v.  Salcido,  137  Cal.  211,  69  Pac.  1010,  1011, 
22  Morr.  Min.  Eep.  360. 

62  Marquart  v.  Bradford,  43  Cal.  526,  529,  5  Morr,  Min.  Rep.  528. 


1605  FORFEITURE.  §  645 

evidence  for  the  special  purpose  only  of  showing  an 
absence  of  such  intention."^  Abandonment  may  also  be 
proved  by  the  acts  and  conduct  of  a  party,  even  against 
his  express  declarations  to  the  contrary.®* 

It  has  been  held  by  the  supreme  court  of  Colorado, 
that  where  the  owners  of  a  mining  claim  convey  a 
portion  of  it  and  subsequently  abandon  the  claim,  the 
right  of  the  grantees  to  occupy  the  conveyed  portion 
terminates.  The  entire  claim  in  such  abandonment 
becomes  open  to  relocation,  and  the  grantees  of  the 
original  locators  cannot  hold  possession  against  the 
relocator.*®  The  reasoning  upon  which  the  opinion  is 
based  is  not  convincing,  and  the  doctrine  is  unsup- 
ported. 

§  645.  Forfeiture.— The  penalty  for  failure  to  com- 
ply with  the  requirements  of  the  law,  in  respect  to  the 
performance  of  annual  labor,  is  found  in  section 
twenty-three  hundred  and  twenty-four  of  the  Revised 
Statutes: — 

Upon  a  failure  to  comply  with  these  conditions, 
the  claim  or  mine  upon  which  such  failure  occurs 
shall  be  open  to  relocation  in  the  same  manner  as  if 
no  location  of  the  same  had  ever  been  made. 

The  term  "forfeiture"  does  not  appear  in  the  stat- 
ute, but  the  courts  employ  it  as  a  comprehensive  word 
indicating  a  legal  result  flowing  from  a  breach  of  con- 
es Noble  V.  Sylvester,  42  Vt.  146,  150,  12  Morr.  Min.  Kep.  62;  Rush 
V.  French,  1  Ariz.  99,  25  Pae.  816,  830;  Tait  v.  Hall,  71  Cal.  149, 
12  Pac.  391,  392;  Lewis  v.  Burns,  106  Cal.  381,  39  Pac.  778,  779;  In- 
ternational &  G.  N.  Ry.  Co.  V.  Anderson,  82  Tex.  516,  27  Am.  St.  Rep. 
902,  17  S.  W.  1039,  1040,  and  authorities  there  cited. 

64  Trevaskis  v.  Peard,  111  Cal.  599,  605,  44  Pac.  246,  248;  Myers  v. 
Spooner,  55  Cal.  257,  260,  9  Morr.  Min.  Rep.  519;  McCann  v.  McMillan, 
129  Cal.  350,  62  Pac.  31,  32,  21  Morr.  Min.  Rep.  6. 

65  Conn  V.  Oberto,  32  Colo.  313,  76  Pac.  369,  370. 


§  645  ABANDONMENT  AND  FORFEITURE.  1606 

dition  subsequent,  subject  to  which  the  locator  acquires 
his  title.'' 

In  a  previous  section  we  have  noted  the  distinction 
between  forfeiture  and  abandonment,  and  have  there 
enumerated  the  leading  characteristics  of  both.'^  We 
have  heretofore  observed  the  reluctance  with  which  the 
courts  enforce  this  penalty.'*  They  have  settled  the 
doctrine  that  the  forfeiture  cannot  be  established  ex- 
cept upon  clear  and  convincing  proof  of  the  failure  of 
the  former  owner  to  have  work  performed  or  improve- 
ments made  to  the  amount  required  by  law.'^ 

While  it  is  often  said  that  a  forfeiture  can  be  shown 
only  upon  ''clear  and  convincing  evidence,"  the  proof 
is  made  as  required  whenever  it  is  shown  by  a  prepon- 
derance of  the  evidence  that  the  full  amount  of  annual 
labor  or  improvements  was  not  made  or  expended 
within  a  given  year.^° 

66  McCulloch  V.  Murphy,  125  Fed.  147,  150. 

67  §   643. 

68  §  624. 

69  Hammer  v.  Garfield  M.  &  M.  Co.,  130  U.  S.  291,  301,  9  Sup.  Ct. 
Eep.  548,  32  L.  ed.  964,  16  Morr.  Min.  Eep.  125;  Strasburger  v.  Beecher, 
20  Mont.  143,  49  Pac.  740,  742;  Axiom  M.  Co.  v.  White,  10  S.  D.  198, 
72  N.  W.  462,  463;  Justice  M.  Co.  v.  Barclay,  82  Fed.  554,  559;  Dibble 
V.  Castle  Chief  G.  M.  Co.,  9  S.  D.  618,  70  N.  W.  1055;  Providence  G.  M. 
Co.  V.  Burke,  6  Ariz.  323,  57  Pac.  641,  19  Morr.  Min.  Eep.  625;  Power  v. 
Sla,  24  Mont.  24.3,  61  Pac.  468,  471;  Emerson  v.  McWhirter,  133  Cal.  510, 
65  Pac.  1036,  1038,  21  Morr.  Min.  Eep.  470;  Buffalo  Z.  &  C.  Co.  v.  Crump, 
70  Ark.  525,  91  Am.  St.  Eep.  87,  69  S.  W.  572,  577,  22  Morr.  Min.  Eep. 
276;  Gear  v.  Ford,  4  Cal.  App.  556,  88  Pac.  600,  602;  Upton  v.  Santa  Eita 
M.  Co.,  14  N.  M.  96,  89  Pac.  275,  287;  Walton  v.  Wild  Goose  M.  &  T. 
Co.,  123  Fed.  209,  219,  60  C.  C.  A.  155,  22  Morr.  Min.  Eep.  622;  Mc- 
Culloch V.  Murphy,  125  Fed.  147,  150;  McKay  v.  Neussler,  148  Fed.  86, 
88,  78  C.  C.  A.  154. 

70  Big  Three  M.  &  M.  Co.  v.  Hamilton,  157  Cal.  130,  137  Am.  St. 
Eep.  118,  107  Pac.  301,  304;  Nevada  Exploration  Co.  v.  Spriggs  (Utah), 
124  Pac.  770,  773;  Copper  Mt.  M.  &  S.  Co.  v.  Butte  &  Corbin  Consol.  M. 
Co.,  39  Mont.  487,  133  Am,  St.  Eep.  595,  104  Pac.  540,  542;   Tiggeman 


1607  FORFEITURE.  §  645 

The  courts  do  not  incline  to  the  enforcement  of  this 
class  of  penalties,  which  have  always  been  deemed  in 
law  odious." 

Of  course,  while  a  claim  is  subject  to  relocation  for 
failure  to  perform  the  requisite  annual  labor,  no  for- 
feiture is  worked,  and  the  estate  of  the  locator  is  not 
divested  until  there  has  been  a  peaceable  entry  for  the 
purpose  of  perfecting  the  relocation.  The  right  of  the 
original  claimant  is  terminated  only  by  the  entry  of  a 
new  one.^^ 

V.  Mrzlak,  40  Mont.  19,  105  Pac.  77,  81;  Swanson  v.  Kettler,  17  Idaho, 
321,  105  Pac.  1059,  1061. 

71  Mt.  Diablo  M.  &  M.  Co.  v.  Callison,  5  Saw.  439,  457,  Fed.  Cas.  No 
9886,  9  Morr.  Min.  Eep.  616;  Belcher  Cons.  G.  M.  Co.  v.  Defarrari,  62 
Cal.  160,  163;  Quigley  v.  Gillett,  101  Cal.  462,  35  Pac.  1040,  1042,  18 
Morr.  Min.  Eep.  68;  Johnson  v.  Young,  18  Colo.  625,  34  Pac.  173,  175; 
Book  V.  Justice  M.  Co.,  58  Fed.  106,  118,  17  Morr.  Min.  Eep.  617;  Colman 
V.  Clements,  23  Cal.  245,  248,  5  Morr.  Min.  Eep.  247 ;  Emerson  v.  McWhir- 
ter,  133  Cal.  510,  65  Pac.  1036,  1038,  21  Morr.  Min.  Rep.  470;  S.  C,  in 
error,  suh  nom.,  Yosemite  M.  Co.  v.  Emerson,  208  U.  S.  25,  28  Sup.  Ct. 
Eep.  196,  52  L,  ed.  374;  Crown  Point  G.  M.  Co.  v.  Crismon,  39  Or.  364,  65 
Pac.  87,  21  Morr.  Min.  Eep.  406;  Gear  v.  Ford,  4  Cal.  App.  556,  88  Pac. 
600,  602;  National  M.  &  M.  Co.  v.  Piccolo,  54  Wash.  617,  104  Pac.  128, 
130;  reversed  on  rehearing  but  not  on  this  point,  Murray  v.  Osborne, 
33  Nev.  267,   111  Pac.  31,  34. 

72  Madison  v.  Octave  Oil  Co.,  154  Cal.  768,  99  Pac.  176,  178;  Bing- 
ham Amalgamated  Copper  Co.  v.  Ute  Copper  Co.,  181  Fed.  748,  750; 
Little  Gunnell  M.  Co.  v.  Kimber,  Fed.  Cas.  No.  8402,  1  Morr.  Min. 
Eep.  536,  539;  Beals  v.  Cone,  27  Colo.  473,  83  Am.  St.  Eep.  92,  62  Pac. 
948,  958,  20  Morr.  Min.  Eep.  591;  McCarthy  v.  Speed,  11  S.  D.  362, 
77  N.  W.  590,  593,  50  L.  E.  A.  184,  19  Morr.  Min.  Eep.  615;  Wilson  v. 
Freeman,  29  Mont.  470,  75  Pac.  84,  86,  68  L.  B.  A.  833,  and  note; 
Field  V.  Tanner,  32  Colo.  278,  75  Pac.  916,  919;  Cunningham  v.  Pirrung, 
9  Ariz.  288,  80  Pac.  329,  331;  National  M.  &  M.  Co.  v.  Piccolo,  54  Wash. 
617,  104  Pac.  128,  130;  Snowy  Peak  M.  Co.  v.  Tamarack  &  Chesapeak 
M.  Co.,  17  Idaho,  630,  107  Pac.  60,  61;  Barklage  v.  Eussell,  29  L.  D. 
401;  In  re  Wolenberg,  29  L.  D.  302,  304;  Neilson  v.  Champagne  M. 
Co.,  29  L.  D.  491;  Coleman  v.  McKenzie,  29  L.  D.  339;  Marburg  Lode 
Mining  Claim,  30  L.  D.  202,  206;  Peachy  v.  Gaddis  (Ariz.),  127  Pac. 
739,  742. 


§  645a  abandonment  and  forfeiture.  1608 

We  have  heretofore  dealt  with  the  subject  of  forfei- 
ture for  failure  to  comply  with  the  requirements  of  local 
rules  other  than  those  governing  the  subject  of  annual 
labor,"  and  have  also  considered  the  effect  of  a  fail- 
ure to  comply  with  the  provisions  of  state  laws  regu- 
lating the  manner  of  initiating  and  perfecting  loca- 
tions.^* The  class  of  forfeitures  which  we  are  now  con- 
sidering are  those  only  which  may  result  from  a  failure 
to  perform  the  annual  labor  required  by  the  federal 
law. 

Succinctly  stated,  the  rule  is,  that  the  work  pre- 
scribed in  the  act  must  be  done,  or  the  claim  is  open 
to  relocation,  and  a  forfeiture  may  thus  ensue." 

The  subject  of  relocation  after  the  original  claimant 
has  failed  to  comply  with  the  law  is  fully  discussed  in 
a  preceding  article. ^° 

§  645a.  Effect  of  abandonment  or  forfeiture  by 
senior  upon  rights  of  junior  conflicting  locators. — We 

have  heretofore  observed  that  surface  conflicts  of  min- 
ing claims  are  more  than  frequent,  the  rights  of  the 
respective  parties  being  in  such  cases  determined  by 
priority,  and  while  for  certain  limited  purposes  the 
lines  of  a  junior  location  may  be  placed  upon  or  over 
those  of  a  senior,  the  rule  is  clearly  established  that  so 
long  as  the  senior  location  remains  valid  and  subsist- 
ing, the  junior  claimant  can  acquire  no  right  what- 
ever as  against  the  senior  claimant.  Such  junior  loca- 
tion is  void  as  against  the  senior. 

But  it  is  a  matter  of  common  occurrence  that  after 
the  location  of  the  junior  conflicting  claim  the  senior 

73  Ante,  §  274. 
T4  Ante,  §§  384,  390. 

75  Russell   V.    Brosseau,    65   Cal.   605,   4   Pac.    643,   645;    Du   Prat   V. 
James,  65  Cal.  555,  4  Pac.  562,  563,  15  Morr.  Min.  Eep.  341. 
T6  §§  402,  409. 


1609  ABANDONMENT  OE  FORFEITURE  BY  SENIOR  LOCATOR.  §  645a 

locator  fails  to  perform  his  annual  work  or  in  rare 
instances  abandons  his  location,  though  not  in  default 
as  to  assessment  work.  The  question  then  arises, 
What  becomes  of  the  conflict  area?  Is  the  junior  loca- 
tion void  ab  initio  as  to  such  conflict  or  will  the  conflict 
area  fall  by  gravity  to  the  junior  locator  without  the 
necessity  of  his  relocating  the  abandoned  ground? 

The  supreme  court  of  the  United  States  in  Belk  v. 
Meagher"  thus  laid  down  the  rule: — 

Mining  claims  are  not  open  to  relocation  until  the 
rights  of  a  former  locator  have  come  to  an  end.  A 
relocator  seeks  to  avail  himself  of  mineral  in  the  pub- 
lic lands  which  another  has  discovered.  This  he 
cannot  do  until  the  discoverer  has  in  law  abandoned 
his  claim  and  left  the  property  open  for  another  to 

take  up A  location  can  only  be  made  where 

the  law  allows  it  to  be  done.  Any  attempt  to  go 
beyond  that  will  be  of  no  avail.  Hence  a  relocation 
on  lands  actually  covered  at  the  time  by  another  valid 
and  subsisting  location  is  void;  and  this  not  only 
against  the  prior  locator  but  all  the  world,  because 

the  law  allows  no  such  thing  to  be  done To 

hold  that  before  the  former  location  has  expired  an 
entry  may  be  made  and  the  several  acts  done  neces- 
saiy  to  protect  a  relocation  will  be  to  encourage 
unseemly  contests  about  the  possession  of  the  public 
mineral  bearing  lands,  which  would  almost  neces- 
sarily be  followed  by  breaches  of  the  peace.'^ 

"  104  U.  S.  279,  284,  26  L.  ed.  739,  1  Morr.  Min.  Eep.  510. 

78  The  supreme  court  of  South  Dakota  expressed  the  view  that  if 
the  claim  of  the  prior  location  is  abandoned  or  forfeited,  or  any  part 
of  the  claim  in  conflict  is  not  rightfully  held  by  the  prior  locator,  the 
subsequent  location  attaches  to  so  much  of  the  ground  not  legally  held 
by  the  prior  locator  as  is  within  the  lines  of  the  subsequent  location. 
McPherson  v.  Julius,  17  S.  D.  98,  95  N.  W.  428,  435.  But  in  this  case 
the  conflict  area  involved  an  excess  over  the  amount  of  the  statutory 
allowance,  and  the  junior  location  covered  this  excess.  The  opinion  is 
partly  obiter.  In  a  later  case  to  be  noted  in  the  text  the  court  followed 
Belk  V.  Meagher. 


§645a 


ABANDONMENT  AND  FORFEITURE. 


1610 


This  rule  was  generally  recognized  in  the  lower 
courts  wherever  the  question  arose,'^^  until  the  supreme 
court  of  the  United  States  in  deciding  the  case  of 
Lavagnino  v.  Uhlig®"  employed  language  which  seemed 
to  be  contrary  to  the  rule  laid  down  in  Belk  v.  Meagher, 
which  latter  case  was  not  mentioned  by  the  court  in  its 
decision.  The  facts  involved  and  the  point  decided 
in  Lavagnino  v.  Ulilig  may  be  explained  by  the  use  of  a 
diagram  here  inserted  as  figure  125a. 


Figure  1 25 a. 

As  to  priorities  the  Levi  P.  and  Veta  were  first  in 
time,  the  Uhligs  1  and  2  next  and  the  Yes  You  Do  the 
junior  claim.  Uhlig  applied  for  patent  to  Ulilig  No.  1 
and  2.  Lavagnino,  owner  of  the  Yes  You  Do,  adversed 
in  the  land  office  as  to  the  area  in  conflict,  and  in  due 
course  instituted  the  adverse  suit  in  question.     The 

79  Oscamp  V.  Crystal  River  M.  Co.,  58  Fed.  293,  295,  7  C.  C.  A.  233, 
17  Morr.  Min.  Eep.  651 ;  Jordan  v.  Duke,  6  Ariz.  55,  53  Pac.  197,  201 ; 
Reynolds  v.  Pascoe,  24  Utah,  219,  66  Pac.  1064,  1065;  Malone  v.  Jack- 
son, 137  Fed.  878,  881,  70  C.  C.  A.  216;  Peoria,  Colorado  M.  &  M.  Co. 
V.  Turner,  20  Colo.  App.  474,  79  Pac.  915,  917;  Gurney  v.  Brown,  32 
Colo.  472,  77  Pac.  357. 

80  198  IT.  S.  443,  25  Sup.  Ct.  Rep.  716,  49  L.  ed.  1119.  For  a  dia- 
cussion  of  this  case  and  its  modification  of  the  rule  in  Belk  v.  Meagher, 
see  note  to  Wilson  v.  Freeman,  68  L.  R.  A.  842. 


1611  ABANDONMENT  OR  FORFEITURE  BY  SENIOR  LOCATOR.  §  645a 

owners  of  the  Levi  P.  and  Veta  failed  to  adverse  and 
were  not  parties  to  the  litigation  which  ensued. 

In  the  trial  court  the  testimony  established  that 
Smith,  a  deputy  United  States  mineral  surveyor, 
located  the  Yes  You  Do  claim  on  January  1, 1898,  eight 
years  after  the  location  of  the  Uhligs,  and  was  inter- 
ested in  the  litigation  though  he  had  transferred  his 
location  title  to  Lavagnino.  A  certified  copy  of  the 
Yes  You  Do  and  deed  to  Lavagnino  was  offered  in  the 
trial  court  and  rejected  on  the  ground  that  Smith 
being  a  deputy  mineral  surveyor  was  disqualified  from 
making  the  location  and  it  was  void.  Upon  this  ruling 
Lavagnino  rested.  The  defendants,  claimants  of  the 
Uhligs,  introduced  evidence  in  support  of  their  title 
to  these  claims.  In  rebuttal  Lavagnino,  plaintiff, 
offered  to  show  that  the  Levi  P.  and  Veta,  in  which  he 
had  no  interest,  were  valid  and  subsisting  claims  and 
embraced  the  discoveries  of  both  the  Uhligs,  at  the 
time  of  the  location  of  the  Uhligs,  and  were  then  owned 
by  one  Mayberry,  who  was  not  a  party  to  the  litigation. 
Alleg^ations  to  this  effect  were  made  in  the  complaint. 
The  objection  of  defendant  to  the  introduction  of  this 
testimony  was  sustained  by  the  trial  court  on  the 
ground  that  as  no  adverse  claim  based  upon  the  Levi 
P.  and  Veta  claims  had  been  made  within  the  pre- 
scribed period,  whatever  rights  the  parties  may  have 
had  to  said  claims  were  waived  by  failure  to  adverse 
the  application  for  patent  for  the  Uhligs. 

This  view  was  sustained  by  the  supreme  court  of 
Utah.^'  The  supreme  court  of  the  United  States  in 
affirming  the  decision  of  the  supreme  court  of  Utah 
held:— 

81  Lavagnino  v.  Uhlig,  26  Utah,  1,  99  Am.  St.  Rep.  808,  71  Pac.  1046, 
22  Morr.  Min.  Rep.  610. 


§  645a  abandonment  and  forfeiture.  1612 

That  if  there  be  a  senior  locator  possessed  of 
paramount  rights  in  the  mineral  lands  for  which 
patent  is  sought,  he  may  abandon  such  rights  and 
cause  them  in  effect  to  inure  to  the  benefit  of  the 
applicant  for  patent  by  failure  to  adverse,  or  after  ad- 
versing,  by  failure  to  prosecute  such  adverse 

Of  course,  the  effect  of  the  construction  which  we 
have  thus  given  to  section  2326  of  the  Revised  Stat- 
utes is  to  cause  the  provision  of  that  section  to 
qualify  sections  2319  and  2324,  thereby  preventing 
mineral  lands  of  the  United  States  which  have  been 
the  subject  of  conflicting  locations  from  becoming 
quoad  the  claims  of  third  parties,  unoccupied  min- 
eral lands  by  the  mere  forfeiture  of  one  of  such  lo- 
cations.^^ 

It  is  interesting  to  note  the  attitude  of  the  lower 
courts  as  to  this  decision,  and  its  effect  upon  the  rule 
in  Belk  v.  Meagher.  These  courts  at  times  wavered  v 
between  a  desire  to  avoid  the  imputation  of  judicial 
insubordination  and  a  conviction  that  the  supreme 
court  of  the  United  States  had  made  a  serious  mistake. 
As  the  attitude  of  these  courts  ultimately  resulted 
in  securing  from  the  supreme  court  of  the  United 
States  a  return  to  the  rule  in  Belk  v.  Meagher,  and  a 
modification  if  not  a  complete  reversal  of  the  doctrine 
announced  in  Lavagnino  v.  Uhlig,  we  will  present  their 
views. 

The  supreme  court  of  Colorado  in  Hoban  v.  Boyer^^ 
ruled,  notwithstanding  the  decision  in  Lavagnino  v. 
Uhlig,  to  which  it  does  not  refer,  that  in  a  suit  in 
support  of  an  adverse  claim  the  defendant  may  show 
that  the  plaintiff's  location  was  made  upon  ground 
embraced  within  a  prior  valid  subsisting  location,  and 
if  he  succeeds  in  the  same  it  is  a  bar  to  plaintiff's  re- 

82  198  U.  S.  443,  455,  456,  25  Sup.  Ct.  Rep.  716,  49  L.  ed.  1119. 

83  37  Colo.  185,  85  Pac.  837. 


1613     ABANDONMENT  OR  FORFEITURE  BY  SENIOR  LOCATOR.    §  645a 

covery.  It  may  be  observed,  however,  that  Brown  v. 
Gumey  hereafter  referred  to  had  been  decided  by  the 
supreme  court  of  the  United  States,  but  is  not  cited 
in  the  opinion. 

In  Sierra  Blanca  Mining  and  Reduction  Co.  v.  Win- 
chell,^*  decided  shortly  after  the  decision  in  Lavagnino 
V.  Uhlig,  the  same  court  held  that  the  failure  to  per- 
fect a  location  by  perfonning  all  the  acts  in  the  series 
required  by  the  state  law  would  not  inure  to  the  bene- 
fit of  an  intervening  junior  locator.  No  mention  is 
made  of  either  Belk  v.  Meagher  or  Lavagnino  v.  Uhlig. 

In  Moorhead  v.  Erie  M.  &  M.  Co.^^  the  same  court 
applied  the  doctrine  of  Belk  v.  Meagher,  citing  it  in 
support  of  its  ruling  without  making  any  mention  of 
either  Lavagnino  v.  Uhlig  or  Brown  v.  Gurney. 

The  supreme  court  of  Montana  in  Helena  Gold  & 
Iron  Co.  V.  Baggaley^®  applied  the  doctrine  of  Lavag- 
nino V.  Uhlig,  holding  that  where  a  senior  locator 
performs  the  initial  step  in  a  series  required  under  the 
state  law  to  complete  a  location,  and  subsequently  fails 
to  perform  the  remaining  acts,  such  failure  does  not 
in  the  presence  of  an  intervening  junior  locator  restore 
the  land  to  the  public  domain,  but  inures  to  the  bene- 
fit of  such  junior  location.  The  court  accepts  the 
doctrine  of  Lavagnino  v.  Uhlig  as  final,  without  com- 
ment or  criticism. 

The  supreme  court  of  Idaho  in  Ambergris  M.  Co.  v. 

Day^^  said: — 

It  has  been  generally  understood  throughout  the 
mining  states  that  Belk  v.  Meagher  had  become  the 
settled  law  to  the  effect  that  no  valid  relocation  can 

84  35  Colo.  13,  83  Pac.  628. 

86  43  Colo.  408,  96  Pac.  254,  256. 

86  34  Mont.  464,  87  Pac.  455,  459, 

87  12  Idaho,  108,  85  Pac.  109,  114. 


§  645a  abandonment  and  forfeiture.  1614 

be  made  on  a  mining  claim  until  the  rights  of  the 
former  relocator  have  been  finally  forfeited  or  aban- 
doned and  that  a  location  made  after  the  forfeiture 
or  abandonment  would  take  precedence  over  such 
invalid  relocation;  but  Lavagnino  v.  Uhlig  decided 
less  than  a  year  ago  appears  to  have  entirely  upset 
the  doctrine,  and  it  will  be  a  matter  of  great  in- 
terest to  the  lawyers  and  courts  as  well  as  the  min- 
ers of  these  Western  States  to  know  just  whether 
these  cases  are  distinguishable  or  the  one  overrules 
the  other  entirely. 

In  Lockhart  v.  FarrelP*  the  supreme  court  of  Utah 
reviewed  the  decision  of  the  supreme  court  of  the 
United  States  in  the  Lavagnino-Uhlig  case,  and  dif- 
ferentiated it.  In  Lockhart  v.  Farrell  the  discovery 
of  the  junior  location  was  within  the  limits  of  the 
senior  claim.  In  the  Lavagnino  case  it  was  observed 
that  there  was  nothing  in  the  opinion  of  the  supreme 
court  of  the  United  States  which  justified  the  asser- 
tion that  the  Uhlig  discoveries  were  within  the  limits 
of  the  Levi  P.  or  Veta.  But  the  offer  was  made  in 
the  trial  court  to  prove  that  fact  among  others.  The 
ruling  sustained  the  objection  to  the  evidence  ten- 
dered, and  it  was  this  ruling  which  was  taken  to  the 
supreme  court  of  the  United  States  and  ajSirmed.  The 
diagram  heretofore  presented  as  figure  125a  shows 
both  Uhlig  discoveries  to  be  within  the  limits  of  the 
Veta,  admittedly  a  prior  claim.  This  diagram  was 
made  from  maps  used  at  the  trial  and  probably  ex- 
hibited the  facts.  While  no  stress  was  laid  upon  this 
in  the  opinion  of  the  United  States  court,  we  do  not, 
considering  the  rejected  offer  which  raised  the  ques- 
tion, see  how  the  Lavagnino  case  can  be  differentiated 
from  the  Lockhart-Farrell  case,  nor  do  we  think  even 

88  31  Utah,  155,  86  Pac.  1077,  1078. 


1615     ABANDONMENT  OR  FORFEITURE  BY  SENIOR  LOCATOR.    §  64r5A 

if  the  facts  were  otherwise  that  there  is  any  difference 
in  jorinciple  between  the  two  cases.  The  supreme 
court  of  Utah,  however,  relied  also  upon  the  decision 
of  the  supreme  court  of  the  United  States  in  Brown  v. 
Gurney,  which  indicated  a  jDrobable  return  by  that 
court  to  the  Belk-Meagher  doctrine. 

The  supreme  court  of  Nevada,  in  Nash  v.  McNa- 
mara®^  made  the  most  complete  analysis  of  the  Belk- 
Meagher  and  Lavagnino-Uhlig  cases  of  any  of  the 
state  courts,  and  in  adhering  to  the  doctrine  of  Belk 
V.  Meagher  took  the  position  that  the  supreme  court 
of  the  United  States  in  deciding  Lavagnino  v.  Uhlig 
did  not  intend  to  overrule  Belk  v.  Meagher. 

In  deciding  the  case  of  Brown  v.  Gurney^''  the  su- 
preme court  of  the  United  States  had  under  consider- 
ation a  state  of  facts  illustrated  by  figure  125b,  which 
accompanies  the  opinion. 


FiGUKE  125b. 

The  Kohnyo  claim  was  divided  into  two  noncontig- 
uous tracts  by  the  Mt,  Rosa  Placer.  Upon  application 
for  patent  the  local  land  officers  allowed  the  entry,  but 

89  30  Xev.  114,  133  Am.  St.  "Rep.  694,  93  Pac.  405.  16  L.  E.  A., 
N.  S.,  168. 

90  201  U.  S.  184,  26  Sup.  Ct.  R«p.  509.  50  L.  ed.  717. 


§  645a  abandonment  and  forfeiture.  1616 

the  general  land  office  compelled  the  applicant  to  elect 
which  of  the  two  segregated  tracts  it  would  take,  as, 
under  the  practice  then  obtaining,  patent  would  not 
be  issued  for  two  segregated  tracts  based  on  one  dis- 
covery. 

The  applicants  elected  to  take  the  tract  (north  five 
hundred  feet)  containing  the  discover}^,  and  filed  an 
instrument  indicating  such  election  June  14,  1898. 
The  entry  as  to  the  south  seven  hundred  feet  was 
thereafter  canceled,  the  order  of  cancellation  being 
dated  July  15,  1898.  The  north  seven  hundred  feet 
shown  on  the  diagram  as  the  Scorpion  was  claimed 
by  three  adverse  locators.  The  Scorpion  was  located 
May  13,  1898,  the  Hobson's  Choice  June  23,  1898,  and 
the  P.  G.  July  16,  1898.  The  Scorpion  was  thus 
located  prior  to  the  election  of  the  Kohnyo  to  take 
the  north  five  hundred  feet;  in  other  words,  the  loca-  ^ 
tion  of  the  Scorpion  was  made  of  a  tract  covered  by 
a  subsisting  entry.  The  Hobson's  Choice  was  located 
after  the  election  of  the  Kohnyo,  which  was  equivalent 
to  an  abandonment  of  the  south  seven  hundred  feet. 
The  P.  G.  was  located  on  the  day  following  the  formal 
cancellation  of  the  entry  as  to  the  south  seven  hun- 
dred feet,  and  the  question  was  which  had  the  better 
right  to  the  ground.  The  owner  of  the  Scorpion  in- 
voked the  doctrine  of  Lavagnino  v.  Uhlig,^^  and 
claimed  that  the  subsequent  abandonment  of  the  area 
by  the  Kohnyo  owners  inured  to  its  benefit.  The  Hob- 
son's Choice  claimed  that  the  ground  reverted  to  the 
public  domain  immediately  upon  the  filing  of  the  elec- 
tion by  the  Kohnyo  owners  to  take  the  north  five  hun- 
dred feet,  and  that  as  the  Hobson's  Choice  was  located 

91  See  argiament  of  counsel,  201  U.  S.  187,  26  Sup.  Ct.  Rep.  509,  50 
L.  ed.  717. 


1617     ABANDONMENT  OR  FORFEITURE  BY  SENIOR  LOCATOR.    §  645a 

shortly  after  the  filing  of  the  election,  its  location  was 
the  only  valid  one.  The  owners  of  the  P.  G.  claimed 
that  the  area  did  not  become  restored  to  the  public 
domain  until  after  the  fomial  cancellation  of  the 
Kohnyo  entry  July  15,  1898. 

The  decision  was  in  favor  of  the  Hobson's  Choice, 
the  court  holding  that  the  election  of  the  Kohnyo 
owners  to  take  the  north  five  hundred  feet  operated 
eo  instanti  as  an  abandonment  taking  effect  on  its  be- 
ing filed  in  the  land  ofiice.  The  Scorpion  was  held  to 
be  void,  which  was  tantamount  to  a  ruling  that  the 
claim  was  not  entitled  to  receive  the  benefit  of  the 
subsequent  abandonment  by  the  Kohnyo  owners  of 
the  south  seven  hundred  feet  covered  by  the  Scorj^ion 
location.  The  court  did  not  mention  either  Belk  v. 
Meagher  or  Lavagnino  v.  Uhlig. 

In  Farrell  v.  Lockhart,®^  the  supreme  court  of  the 
United  States  expressed  the  view  that  the  opinion  in 
Lavagnino  v.  Uhlig 

should  be  qualified  so  as  not  to  exclude  the  right 
of  a  subsequent  locator  on  an  adverse  claim  to  test 
the  lawfulness  of  a  prior  location  of  the  same  min- 
ing ground  upon  the  contention  that  at  the  time 
such  prior  location  was  made,  the  ground  embraced 
therein  was  covered  by  a  valid  and  subsisting  min- 
ing claim. 

And  in  the  subsequent  case  of  Swanson  v.  Sears,'^  the 
court  distinctly  held  that 

a  location  and  discovery  on  land  withdrawn  quoad 
hoc  from  the  public  domain  by  a  valid  ard  subsist- 
ing mining  claim  is  absolutely  void  for  the  purpose 
of  founding  a  contradictory  right, 

82  210  U.  S.  142,  146,  28  Sup.  Ct.  Eep.  6S1,  683,  52  L.  ed.  994,  16 
L.  R.  A.,  N.  S.,  162. 

93  224  U.  S.  180,  181,  32  Sup.  Ct.  Rep.  455,  56  L.  ed.  721. 
Lindley  on  M. — 102 


§  645a  abandonment  and  forfeiture.  1618 

Speaking  of  Lavagnino  v.  Ulilig,  tlie  court  said : — 

It  is  true  that  there  is  reasoning  to  the  contrary 
in  Lavagnino  v.  Uhlig,  but  in  Farrell  v.  Lockhart, 
that  language  was  qualified  and  the  older  precedents 
recognized  as  in  full  force. 

By  this  somewhat  devious  route  the  supreme  court 
of  the  United  States  returned  to  the  "older  prece- 
dents," which  remain  "unqualified"  as  a  guide  to 
future  decision. 

All  the  decisions  of  the  other  courts  rendered  since 
Brown  v.  Gurney  and  Farrell  v.  Lockhart  recognize 
the  binding  force  of  these  "precedents."®* 

The  application  of  the  principles  involved  in  the 
cases  heretofore  discussed  may  be  illustrated  by  the 
following  hypothetical  cases,  in  which  A,  B,  and  C  are 
adverse  claimants  to  the  same  ground,  priorities  being 
in  the  order  named. 

First.  Where  the  controversy  is  confined  to  A  and 
B,  A's  claim  was  subsisting  when  B  made  his  loca- 
tion. A  commences  suit  to  quiet  title.  B  defends  on 
the  ground  that  A  failed  to  perform  the  annual  work 
for  one  or  more  years  subsequent  to  B's  location.  In 
this  action  A  must  prevail  for  the  obvious  reason 
that  his  estate  has  never  been  forfeited.  It  was  sub- 
ject to  forfeiture  and  his  estate  might  have  been  ter- 
minated by  a  relocation  made  at  the  proper  time.  A's 
failure  to  perform  the  work  does  not  inure  to  the  bene- 
fit of  B,  whose  location  was  void  at  the  time  it  was 
made. 

»*  Swanson  v.  Kettler,  17  Idaho,  321,  105  Pac.  1059,  1065;  Bergquist 
V.  West  Virginia  &  Wyoming  C.  Co.,  18  Wyo.  234,  106  Pac.  673,  683; 
Street  v.  Delta  M.  Co.,  42  Mont.  371,  112  Pac.  701,  705;  Willison  v. 
Eingwood,  190  Fed.  549,  552,  111  C.  C.  A.  401;  Kooney  v.  Barnette,  200 
Fed.  700,  708. 


1619     ABANDONMENT  OR  FORFEITURE  BY  SENIOR  LOCATOR.    §  645a 

Second.  A  applies  for  patent  and  B  adverses,  or 
B  applies  for  patent  and  A  adverses,  the  same  result 
follows. 

Third.  B  applies  for  patent  and  A  fails  to  adverse. 
B  succeeds  in  securing  a  patent  not  because  his  loca- 
tion covering  a  prior  claim  is  valid,  but  because  the 
question  of  priority  of  title  is  conclusively  determined 
in  B's  favor.®'  The  question  of  performance  or  non- 
performance of  annual  work  is  not  a  question  with 
which  the  government  is  concerned  in  the  absence  of 
adverse  claims  asserted  in  the  patent  proceeding.®® 
In  the  absence  of  such  adverse  claims  the  land  de- 
partment must  necessarily  assume  that  the  title  of  the 
applicant  is  free  from  surface  conflict.  It  does  not 
determine  the  date  of  the  location.  Its  adjudication 
at  the  time  of  the  final  entry  is  simply  that  at  that 
time  the  applicant  has  performed  all  the  acts  required 
by  law  to  perfect  his  location.®^  The  circumstances 
under  which  B  originally  made  his  location  are  not 
brought  to  the  attention  of  the  land  department. 

Fourth.  A,  B,  and  C  are  conflicting  locators  of  the 
same  ground  with  priorities  in  the  order  named.  At 
the  time  B  located,  A's  location  was  valid  and  sub- 
sisting, and  not  subject  to  relocation.  Subsequently 
A  fails  to  perform  the  annual  work  for  a  given  calendar 
year,  after  the  lapse  of  which  C  relocates  the  claim. 
In  any  ordinary  action  disconnected  with  the  patent 
proceedings  in  which  A,  B  and  C  are  arrayed  against 
one  another,  A  would  be  eliminated,  and  C  would  de- 
feat B,  for  the  reason  that  B's  location  was  invalid 

"  Post,  §  742. 
•«  Ante,  §  624. 

97  Creede  &  Cripple  Creek  M.  &  M.  Co.  v.  Uinta  T.  M.  &  T.  Co.,  196 
U.  S.  337,  354,  25  Sup.  Ct.  Rep.  266,  49  L.  ed.  501. 


§  646  ABANDONMENT  AND   FORFEITURE.  1620 

when  made.  C's  relocation  is  valid  because  the  ground 
was  then  for  the  first  time  open  to  relocation.  In 
other  words,  B's  location  was  void,  not  only  as  against 
A,  but  as  against  all  the  world. 

Fifth.  A  controversy  arises  between  B  and  C.  B 
applies  for  patent,  C  adverses  and  A  stands  aloof.  In 
adverse  suits  the  title  of  each  party  is  put  in  issue. 
C  may  assail  B's  title  on  the  ground  that  when  B  lo- 
cated the  claim  the  location  of  A  was  valid  and  sub- 
sisting, although  A  is  not  a  party  to  the  controversy. 
B  may  rebut  this  attack  by  showing  an  abandonment 
on  the  part  of  A  prior  to  the  date  of  B's  location,  al- 
though A  was  not  in  default  as  to  his  annual  work. 
In  this  event  the  burden  of  proof  is  on  B  to  show  aban- 
donment by  A.^^ 

The  principles  applied  in  the  foregoing  illustrations 
are  controlling,  however  the  parties  may  be  arrayed 
against  each  other.  These  principles  are  those  sanc- 
tioned by  the  older  as  well  as  by  the  later  precedents. 

§  646.  Forfeiture  to  co-owners. — Section  twenty- 
three  hundred  and  twenty-four  of  the  Revised  Stat- 
utes, after  providing  for  the  performance  of  annual 
labor  or  the  making  of  improvements  to  the  value  of 
one  hundred  dollars  during  each  calendar  year,  con- 
tains the  following  additional  provision: — 

Upon  the  failure  of  any  one  of  several  co-owners 
to  contribute  his  proportion  of  the  expenditures  re- 
quired hereby,  the  co-owners  who  have  performed 
the  labor  or  made  the  improvements^®  may,  at  the 

98  Willison  V.  Ringwood,  190  Fed.  549,  551,  111  C.  C.  A.  401. 

99  A  co-owner  who  has  not  made  the  required  expenditures  is  not  within 
the  terms  of  the  statute,  and  therefore  not  in  a  position  to  take  advan- 
tage of  its  forfeiture  provisions.  If  a  group  of  claims  is  involved  in 
the  forfeiture  proceedings,  he  must  have  expended  one  hundred  dollars 
for  each  claim  in  the  group.     Golden  &  Cord  M.  &  M.  Co.,  31  L,  D. 


1621  FORFEITURE    TO    CO-OWNERS.  §  646 

expiration  of  the  year,  give  such  delinquent  co-owner 
personal  notice""  in  writing/  or  notice  by  publica- 
tion in  the  newspaper  published  nearest  the  claim,* 
for  at  least  once  a  week  for  ninety  days,^  and  if  at 
the  expiration  of  ninety  days  after  such  notice  in 
writing,  or  by  publication,  such  delinquent  should 
fail  or  refuse  to  contribute  his  proportion  of  the 
expenditure  required  by  this  section,  his  interest 
in  the  claim  shall  become  the  property  of  his  co- 
owners  who  have  made  required  expenditures. 

As  was  said  by  the  supreme  court  of  the  United 
States: — 

This  statute  provides  a  summary  method  for  the 
purpose  of  insuring  the  proper  contribution  of  co- 
owners  among  themselves  in  the  working  of  the 
mine,  and  it  p>rovides  a  means  by  which  a  delinquent 
co-owner  may  be  compelled  to  contribute  his  share 
under  tlie  penalty  of  losing  his  right  and  title  in 
the  property  because  of  such  failure.* 

In  the  case  of  Brundy  v.  Mayfield,  considered  by  the 
supreme  court  of  Montana,^  it  was  urged  that  this  por- 
tion of  the  federal  statute  was  repugnant  to  the  con- 
stitution of  the  United  States,  as  it  was  an  attempt 
to  deprive  persons  of  property  without  due  process 
of  law.     The  court  did  not  pass  upon  the  question. 

178.     Approved  and  followed  in  a  similar  case  in  an  action  to  erect  a 
trust  on  patented  title.     Delmoe  v.  Long,  35  Mont.  139,  88  Pac.  778,  783. 
100  For  suggested  defects  and  contents  of  notice,  see  Haynes  v.  Bris- 
coe, 29  Colo.  137,  67  Pac.  156. 

1  Service  by  mail  is  not  sufficient.  Ilaynes  v.  Briscoe,  29  Colo.  137, 
67  Pac.  156. 

2  This  does  not  mean  "the  nearest  traveled  route."  Haj'nes  v.  Bris- 
coe, 29  Colo.  137,  67  Pac.  156.  See  discussion  as  to'  this  under  the 
patent  proceedings,  post,   §  685. 

3  As  to  manner  of  computing  the  period  of  publication,  see  Elder  v. 
Horseshoe  M.  Co.,  15  S.  D.  124,  102  Am.  St.  Rep.  681,  87  X.  W.  586. 

*  Elder  v.  Horseshoe  INI.  &  M.  Co.,  194  U.  S.  248,  255,  24  Sup.  Ct. 
Eep.  643.  48  L.  ed.  960. 

6  15  Mont.  201,  38  Pac.  1067. 


§  646  ABANDONMENT  AND   FORFEITURE.  1622 

The  exigencies  of  the  case  did  not  require  it.  In  Van 
Sice  V.  Ibex  M.  Co.^  the  same  question  was  raised  and 
the  circuit  court  of  appeals,  eighth  circuit,  held  that 
it  was  wanting  in  merit.     It  was  there  said  that — 

The  mineral  lands  were  the  property  of  the  gov- 
ernment and  for  the  disposal  of  them  it  was  compe- 
tent for  congress  to  prescribe  such  conditions  as  in 
its  judgment  were  required  by  wise  public  policy. 
The  section  of  the  statute  providing  for  the  extin- 
guishment of  the  interest  of  a  co-owner  for  his  fail- 
ure to  contribute  to  the  work  of  exploration  and 
development  is  part  of  the  very  law  upon  which  he 
is  compelled  to  rely  for  the  source  of  his  title,  for 
the  existence  of  any  right  whatever.  He  cannot 
well  claim  a  vested  interest  freed  from  the  statutory 
conditions  which  qualify  it.  The  right  and  its  limi- 
tations go  together. 

The  courts,  however,  hold  that  the  statute  is  one  of 
forfeiture  and  should  be  strictly  construed.'' 

In  order,  therefore,  that  the  interest  of  a  cotenant 
may  be  forfeited  it  is  essential — 

1.  That  the  relationship  of  cotenancy  exist. 

2.  That  the  entire  work  shall  have  been  performed 
by  one  or  more  of  the  cotenants. 

3.  That  the  delinquent  cotenant  or  his  successors 
in  estate  has  failed  to  contribute  his  proportion  after 
service  of  personal  notice  or  by  publication,  as  required 
by  law. 

6  173  Fed.  895,  896,  97  C.  C.  A.  587. 

7  Turner  v.  Sawyer,  150  U.  S.  578,  5S5,  14  Sup.  Ct.  Eep.  192,  37 
L.  ed.  1189,  17  Morr.  Min.  Rep.  683;  McCarthy  v.  Speed,  11  S.  D.  362, 
77  N.  W.  590,  593,  50  L.  E.  A.  184,  19  Morr.  Min.  Rep.  615;  Elder  v. 
Horseshoe  M.  Co.,  15  S.  D.  124,  102  Am.  St.  Rep.  681,  87  N.  W.  586; 
Delmoe  v.  Long,  35  Mont.  139,  88  Pac.  779,  783;  Evalina  Gold  Mining 
Co.  V.  Yosemite  M.  &  M.  Co.,  15  Cal.  App.  714,  115  Pac.  946,  948; 
Repeater  and  Other  Lodes,  35  L.  D.  56. 


1623  FORFEITURE   TO    CO-OWNERS.  §  646 

It  is  quite  obvious  that  one  who  does  not  occux^y  the 
status  of  a  cotenant,  e.  g.,  a  mere  lienholder,^  or  the 
stockholder  of  a  corporation,^  or  the  superintendent 
of  a  mining  compan}-  using  his  own  name  for  that 
purpose/"  cannot  avail  himself  of  the  benefit  of  the 
statute.  Parties,  however,  who  succeed  to  the  interest 
of  a  cotenant  who  has  performed  the  work,  may  obtain 
forfeiture  by  giving  the  notice,  and  otherwise  comply- 
ing with  the  statute." 

Where  cotenants  convey  to  a  trustee,  notices  signed 
by  the  beneficial  owners — the  original  cotenants — have 
been  held  sufiicient.^^  Necessarily  the  work  must  have 
been  actually  done,"  and  there  should  have  existed 
the  necessity  for  doing  it  to  protect  the  property. 
Where  performance  is  not  required  during  any  given 
year,  the  mere  doing  of  the  work  for  that  year  will 
not  avail  the  working  cotenant  as  the  basis  of  for- 
feiture." One  who  does  assessment  work  on  an  asso- 
ciation placer  mining  claim,  for  which  he  is  paid  by 
one  of  the  part  owners,  has  no  right  to  enforce  for- 
feiture of  the  interest  of  another  part  owner  for  failure 
to  contributed^  The  death  of  the  cotenant  perfoiin- 
ing  the  labor  would  not  deprive  his  personal  repre- 

8  Turner  v.  Sawyer,  150  U.  S.  578,  585,  14  Sup.  Ct.  Rep.  192,  37 
L.  ed.  1189. 

8  Repeater  and  Other  Lode  Claims,  35  L.  D.  54. 

10  Dj-e  V.  Crary,  13  N.  M.  439,  9  L.  R.  A.,  N.  S.,  1136,  85  Pac.  1038, 
1043;  affirmed,  208  U.  S.  515,  526,  28  Sup.  Ct.  Rep.  360,  52  L.  ed.  595. 

11  Badger  Gold  M.  &  M,  Co.  v.  Stockton  G.  &  C.  M.  Co.,  139  Fed. 
838,  842.  In  this  case  the  selling  cotcuant  who  had  performed  the  work 
joined  in  the  notice,  but  the  court  held  that  his  rights  were  assignable. 
See,  also.  In  re  Squires,  40  L.  D.  542,  545. 

12  Van  Sice  v.  Ibex  Min.  Co.,  173  Fed.  895,  897,  97  C.  C.  A.  587. 

13  Delmoe  v.  Long,  35  Mont.  139,  88  Pac.  779,  782;  Golden  &  Cord 
Lode  Claims,  31  L.  D.  178;  In  re  Squires,  40  L.  D.  542. 

14  Royston  v.  Miller,  76  Fed.  50,  53,  18  Morr.  Min.  Rep.  418. 
16  Knickerbocker  v.  Halla,  177  Fed.  172,  174,  100  C.  C.  A.  634. 


§  64:6  ABANDONMENT  AND  FORFEITURE.  1624 

sentatives  of  tlie  right  to  obtain  forfeiture,  nor  would 
the  death  of  the  delinquent  co-owner  prevent  the  pro- 
ceedings under  the  statute  against  the  heirs  or  per- 
sonal representatives/® 

The  question  as  to  whether  the  remedy  of  a  working 
cotenant  against  a  nonparticipating  co-owner  is  ex- 
clusive or  not  was  mooted  in  an  opinion  rendered  by 
the  supreme  court  of  Idaho. ^^ 

As  the  law  requires  the  work  to  be  done  in  order  to 
save  the  property  from  forfeiture  through  relocation, 
it  would  seem  beyond  question  that  there  is  an  im- 
plied contract  on  the  jDart  of  each  cotenant  to  reim- 
burse his  co-owner  for  expenditures  made  by  him  to 
protect  the  property  for  the  common  benefit.  A  par- 
tial performance  by  one  co-owner  will  not  save  his 
interest.  Kepresentation  is  a  unit,^®  and  as  one  co- 
tenant,  in  order  to  protect  his  interest  in  the  location, 
may  be  compelled  to  expend  more  than  his  just  share, 
those  associated  with  him  should  be  compelled  to  con- 
tribute their  respective  proportions.  Failing  so  to  do, 
the  one  performing  the  labor  making  the  required 
expenditure  would  have  his  right  of  action  against  the 
delinquent  co-owners.^®  The  right  of  one  cotenant  to 
contribution  from  others  for  expenditures  made  in  re- 
moving a  common  burden  is  well  settled.^"     But  this 

16  Elder  v.  Horseshoe  M.  &  M.  Co.,  194  U.  S.  248,  254,  24  Sup.  Ct. 
Kep.  643,  48  L.  ed.  960.  In  Billings  v.  Aspen  Min.  &  S.  Co.,  51  Fed. 
338,  339,  2  C.  C.  A.  252,  the  notice  was  addressed  to  the  deceased  or 
his  administrator.  It  was  held  void,  but  in  the  light  of  Elder  v.  Horse- 
shoe M.  &  M.  Co.,  supra,  the  Billings-Aspen  ease  is  no  longer  authority, 

17  McDaniel  v.  Moore,  19  Idaho,  43,  112  Pac.  317,  319. 

18  Saunders  v.  Mackey,  5  Mont.  523,  6  Pac.  361,  362. 

i»  Holbrooke  v.  Harrington,  4  Cal.  Unrep.  554,  36  Pac.  365,  366. 

20  Freeman  on  Cotenancy  and  Partition,  §  322;  Harrison  v.  Cole, 
50  Colo.  470,  116  Pac.  1123,  1126;  McDaniel  v.  Moore,  19  Idaho,  43, 
112  Pac.  317,  319;    Beck  v.  O'Connor,  21  Mont.   109,  53   Pac.   94,   96, 


1625  FORFEITURE    TO    CO-OWNERS.  §  646 

remedy  is  in  personam,  and  would  not  enable  the  work- 
ing cotenant  to  secure  the  interest  of  the  delinquent, 
except  by  suit  on  the  implied  promise,  judgment  and 
sale  under  execution.  If  the  working  cotenant  seeks 
to  effectuate  a  forfeiture,  the  only  method  is  that  out- 
lined in  the  statute,  and  this  method  must  be  strictly 
pursued.  The  proceeding  by  which  the  interest  of  a 
delinquent  co-owner  is  forfeited  to  such  of  his  co- 
tenants  as  perform  the  work  may  be  said  to  be  in  the 
nature  of  a  proceeding  in  rem,  the  initial  step  in  such 
proceeding  being  the  service  of  a  notice  upon  the  de- 
linquent. This  service  may  be  personal  or  by  publi- 
cation. Publication  is  not  required  where  there  is 
personal  service."  Where  there  is  personal  service 
and  a  subsequent  publication,  the  publication  is  a 
waiver  of  the  personal  service.-^  There  is  no  au- 
thority for  service  by  mail." 

As  to  whom  the  notice  should  be  addressed,  there 
is  no  specific  provision  of  the  statute.'*  A  notice  ad- 
dressed to  "Rufus  Wilsey,  his  heirs,  administrators, 
and  to  all  whom  it  may  concern,"  was  when  published 
held  to  be  sufficient,  although  at  the  time  of  publica- 
tion Wilsey  was  dead  and  no  administrator  had  been 
appointed.^" 

citing  Prentice  v.  Janssen,  79  N.  Y.  478;  Jenkins  v.  Jenkins  (N,  J.),  5 
Atl.  134,  136;  Eads  v.  Retherford,  114  Ind.  273,  5  Am.  St.  Rep.  611, 
16  N.  E.  587,  588.  See  Oliver  v.  Lansing,  57  Neb.  352,  77  N.  W.  802, 
804. 

21  Evalina  G.  M.  Co.  v.  Yosemite  G.  M.  &  M.  Co.,  15  Cal.  App.  714, 
115  Pae.  946,  948. 

22  Knickerbocker  v.  Halla,  177  Fed.   172,  174,  100  C.  C.  A.  634. 

23  Haynes  v.  Briscoe,  29  Colo.  137,  67  Pac.  156. 

24  Elder  V.  Horseshoe  M.  &  M.  Co.,  9  S.  D.  636,  62  Am.  St.  Rep.  895, 
70  N.  W.  1060. 

25  Elder  v.  Horseshoe  M.  &  M.  Co.,  194  U.  S.  248,  254,  24  Sup.  Ct. 
Rep.  643,  48  L.  ed.  960,  affirming  15  S.  D.  124,  1U2  Am.  St.  Rep.  681, 
87  N.  W.  586. 


§  646  ABANDONMENT  AND  FORFEITURE.  1626 

One  of  the  California  district  courts  of  appeals, 
speaking  of  the  addressee  of  such  notice,  said : — 

If  the  notice  had  been  by  publication  there  would 
be  some  reason  in  holding  as  the  cases  seem  to  hold, 
that  in  order  to  bind  unknown  owners  the  notice 
should  not  only  be  directed  to  the  ostensible  or  sup- 
posed co-owners,  but  to  their  heirs,  administrators 
and  assigns.  But  where  the  notice  is  addressed  to 
and  personally  served  upon  the  only  known  co-own- 
ers it  would  be  idle  to  further  address  the  notice  for 
there  would  be  no  known  person  upon  whom  to 
serve  it.^® 

When  the  notice  is  to  be  personally  served,  such 
service  may  be  made  by  anyone,  unless  the  state  law 
provides  for  service  by  some  officer,  as  in  Oregon, 
where  it  must  be  made  by  the  sheriff.'^ 

Personal  service  on  a  co-owner  binds  his  grantee 
under  an  unrecorded  conveyance  when  such  grantee  ^ 
has  knowledge  of  the  delinquency."^ 

Where  service  is  to  be  made  by  publication,  the 
notice  must  be  published  in  the  newspaper  published 
nearest  the  claim  for  at  least  once  a  week  for  ninety 
days. 

As  to  this  publication  the  supreme  court  of  South 
Dakota  thus  expressed  its  views : — 

We  feel  justified  in  the  conclusion  that  congress 
in  adopting  the  provisions  in  regard  to  the  disposi- 
tion to  be  made  of  a  defaulting  co-owner's  interest 
in  the  claim  acted  upon  the  same  theor^^  and  the 
published  notice  was  intended  to  accomplish  the 
same  result  as  the  published  notice  of  application 

26  Evalina  Gold  M.  Co.  v.  Yosemite  G.  G.  &  M.  Co.,  15  Cal.  App.  714, 
115  Pac.  946,  948. 

27  Laws  1903,  p.  326,  §  1;  Lord's  Laws,  §§  5141,  5151. 

28  Evalina  G.  M.  Co.  v.  Yosemite  G.  M.  Co.,  15  Cal.  App.  714,  115 
Pac.  946,  948. 


1627  FORFEITURE   TO    CO-OWNERS.  §  646 

for  a  patent,  that  is,  to  cut  off  all  claims  of  all  per- 
sons, and  vest  in  the  co-owner  a  clear  title  to  his 
co-owner's  interest  without  regard  to  the  interest 
of  minors,  lienholders  or  encumbrancers.^®' 

The  supreme  court  of  the  United  States  concurred 
inferentially  at  least  in  this  view,  holding  that  the 
proceeding  is  entirely  unlike  the  publication  of  sum- 
mons for  the  purpose  of  commencing  an  action  against 
a  particular  individual.^® 

As  to  what  is  meant  by  the  ''newspaper  published 
nearest  the  claim,"  it  is  doubtful  if  we  may  rely  upon 
the  rule  governing  publication  in  the  patent  proceed- 
ings. The  statute  in  that  behalf  contains  a  similar 
requirement,  but  in  such  cases  the  register  is  called 
upon  to  designate  the  newspaper,  and  he  is  allowed 
some  discretion  in  the  matter.  This  subject  is  dis- 
cussed elsewhere. ^°  The  supreme  court  of  Colorado 
thinks  the  analogy  of  the  publication  in  the  patent 
proceedings  does  not  apply  to  the  forfeiture  statute. 
It  held  that  "nearest  the  claim"  did  not  mean  that  the 
distance  should  be  measured  by  the  nearest  traveled 
route."  The  air-line  distance  would  seem  to  meet  the 
requirement. 

With  reference  to  the  period  of  publication, 

the  phrase  "for  at  least  one  week  for  ninety  days" 
should  be  rendered  "at  least  once  a  week  during 
ninety  days,"  that  is  to  say,  there  shall  be  at  least 
one  publication  in  each  week  during  the  prescribed 
period.  In  other  words,  notice  shall  continue  ninety 
days  and  one  publication  each  week  constitutes  the 

28a  Elder  v.  Horseshoe  M.  &  M.  Co.,  9  S.  D.  636,  62  Am.  St.  Rep.  895, 
70  N.  W.  1060,  1063. 

29  Elder  v.  Horseshoe  M.  &  M.  Co.,  194  U.  S.  248,  254,  24  Sup.  Ct, 
Rep.  643,  48  L.  ed.  960. 

30  Post,  §  685. 

81  Haynes  v.  Briscoe,  29  Colo.  137,  67  Pac.  156,  157. 


§  646  ABANDONMENT  AND  FORFEITURE.  1628 

notice  required.     Necessarily  the  90-day  period  be- 
gins with  the  first  publication.^^ 

Necessarily,  in  cases  where  the  forfeiture  proceed- 
ings are  invoked,  the  burden  of  proof  rests  upon  fhe 
party  claiming  the  benefit  of  such  forfeiture.^* 

As  a  rule,  the  state  laws  provide  for  making  a  record 
of  the  various  steps  culminating  in  the  forfeiture,  mak- 
ing certain  afiidavits  prima  facie  evidence  of  the  facts 
and  supplying  something  in  the  nature  of  a  record 
chain  of  title.  Such  affidavits  are  required  by  de- 
partmental regulation  in  patent  proceedings.^* 

The  states  of  Arizona,^^  California,*®  Nevada,"  and 
Oregon*®  have  enacted  laws  supplementary  to  the  fed- 
eral statute,  the  provisions  of  which  laws  must  also 
be  complied  with,  as  such  laws  are  recognized  to  be 
within  the  power  of  the  state.  The  fundamental  re- 
quirements of  the  federal  law  must  of  course  be  ob- 
served, permissive  local  state  legislation  being  limited 
to  matters  of  detail. 

The  land  department  originally  followed  the  rule 
that  where  one  of  several  co-owners  applies  for  a  pat- 
ent, and  in  doing  so  excludes  his  cotenant,  the  latter 
could  only  protect  himself  by  proceedings  to  deter- 
mine an  adverse  claim,  under  section  twenty-three 
hundred  and  twenty-six  of  the  Revised  Statutes,  and 

32  Elder  v.  Horseshoe  M.  &  M.  Co.,  15  S.  D.  124,  102  Am.  St.  Eep. 
681,  87  N.  W.  586;  affirmed,  194  U.  S.  248,  256,  24  Sup.  Ct.  Eep.  643, 
t8  L.  ed.  960. 

33  Haynes  v.  Briscoe,  29  Colo.  137,  67  Pac.  156,  157. 
3*  Par.  15,  Mining  Kegulations,  Appendix. 

35  Laws  1891,  p.  103,  §  11;  Rev.  Stats.  1901,  §§  3245-3249. 

36  Civ.  Code,  §  1426a. 

37  Laws  1897,  p.  103,  §  11;  Comp.  Laws  Nev.  1900,  §  218;  Rev. 
Laws  1912,  §  2432. 

88  Laws  1903,  p.  327;  Lord's  Or.  Laws,  §§  5142-5150. 


1629  FORFEITURE  TO   CO-OWNERS.  §  646 

that  the  department  was  not  called  upon  to  protect  the 
equities  of  such  excluded  co-owner.^* 

But  it  now  concedes  the  rule  to  be,  that  ordinarily 
the  excluded  co-owner  is  not  required  to  adverse  the 
patent  application,  and  it  therefore  allows  him  the 
right  to  protest  against  the  issuance  of  the  patent/" 
In  one  instance  it  gave  to  the  patent  applicant  who  had 
disregarded  his  cotenant's  rights  the  choice  of  two 
methods  of  doing  equity, — either  to  consent  to  the  in- 
sertion of  the  name  of  his  omitted  cotenant  in  the 
patent  or  to  have  his  patent  application  canceled." 
But  a  co-owner  who  has  been  omitted  from  an  appli- 
cation for  patent  to  a  mining  claim  cannot  by  subse- 
quent recourse  to  forfeiture  proceedings  against  the 
applicant  co-owner  acquire  any  rights  in  himself  to 
make  entry  under  the  co-owner's  application.  The 
interest  of  a  co-owner  in  a  mining  claim  which  may 
be  acquired  under  the  forfeiture  provisions  of  the  stat- 
ute is  the  share  or  interest  of  such  co-owner  in  the 
purely  possessory  rights,  and  not  in  any  rights  under 
an  application  for  patent." 

A  cotenant  excluded  from  a  patent  application  may 
adverse,  and  perhaps,  under  certain  circumstances, 
where  the  claim  is  held  in  open  hostility  and  there  is 
an  emphatic  and  well-recognized  repudiation  of  his 
title  brought  to  his  notice,  his  asserted  title  may  be 
jeopardized  by  failure  to  adverse;*^  or  he  ynay  protest 
— a  privilege  granted  by  departmental  regulations." 

39  Grampian  Lode,  1  L.  D.  544;  Hussey  Lode,  5  L.  D.  93;  Monitor 
Lode,  18  L.  D.  358. 

40  Par.  53,  Mining  Regulations,  Appendix.     See  §  728,  post. 

41  Golden  &  Cord  Lode  Mining  Claims,  31  L.  D.  178. 

42  Surprise  Fraction  and  Other  Lodes,  32  L.  D.  93. 

43  Judge  Elliott's  concurring  opinion  in  Tabor  v.  Sullivan,  12  Colo, 
136,  151,  20  Pac.  437,  441. 

44  Surprise  Fraction  and  Other  Lodes,  32  L.  D.  93. 


§  646  ABANDONMENT  AND  FORFEITURE.  1630 

But  ordinarily  he  is  not  compelled  to  either  adverse 
or  protest.  If  he  has  been  wrongfully  excluded,  he 
may  have  a  trust  declared  at  any  time  after  the  is- 
suance of  the  patent.*^  The  regulations  of  the  land 
department  do  not  in  this  class  of  cases  oust  the  juris- 
diction of  the  courts.*^  Should  the  omitted  cotenant 
adverse,  the  land  department  will  suspend  the  patent 
proceeding,*^  to  abide  the  event  of  the  adverse  suit. 

It  is  not  our  purpose  to  consider  here  the  relative 
rights,  duties,  and  obligations  existing  between  ten- 
ants in  common  of  mining  claims.  We  have  hereto- 
fore discussed  the  subject  of  relocation  by  one  cotenant 
in  hostility  to  the  others,^^  and  in  future  chapters  will 
have  occasion  to  consider  the  general  subject  of  min- 
ing partnerships  and  cotenancy. 

The  object  of  this  section  is  simply  to  invite  atten- 
tion to  that  portion  of  the  federal  law  which  purports 
to  sanction  a  forfeiture  for  the  benefit  of  a  co-owner. 
All  courts  agree  that  the  statute  must  be  strictly  con- 
strued. While  it  may  be  true,  as  a  general  rule,  that  a 
court  of  equity  will  not  aid  in  enforcing  a  forfeiture, 
yet  the  rule  is  not  inflexible. 

«  Turner  v.  Sawyer,  150  U.  S.  578,  586,  14  Sup.  Ct.  Rep.  192,  37  L. 
ed.  1189,  17  Morr.  Min.  Rep.  683;  Sussenbach  v.  First  Nat.  Bank,  5 
N.  D.  477,  41  N.  W.  662;  Brundy  v.  Mayfield,  15  Mont.  201,  38  Pac. 
1067,  1070;  Malaby  v.  Rice,  15  Colo.  App.  364,  62  Pac.  228;  Ballard 
V.  Golob,  34  Colo.  417,  83  Pac.  376;  Stephens  v.  Golob,  34  Colo.  429,, 
83  Pac.  381;  Lockhart  v.  Leeds,  195  U.  S.  427,  25  Sup.  Ct.  Rep.  76, 
49  L.  ed.  263. 

46  Turner  v.  Sawyer,  150  U.  S.  578,  588,  14  Sup.  Ct.  Rep.  192,  37 
L.  ed.  1189,  17  Morr.  Min.  Rep.  683;  Malaby  v.  Rice,  15  Colo.  App. 
364,  62  Pac.  228. 

*7  Thomas  v.  Elling,  25  L.  D.  495;  S.  C,  on  review,  26  L.  D.  220. 

48  Ante,  §  406. 


1631 


RESUMPTION  PREVENTS  FORFEITURE. 


§651 


The  rule  is  that  forfeiture  will  be  enforced  in  a 
court  of  equity  when  such  relief  accords  more  with 
the  principles  of  right  and  justice  than  would  the 
denial  thereof/"* 


Article  II.    Resumption  of  Work. 


651.  Eesumption    of   rrork   pre- 

vents forfeiture. 

652.  What    constitutes   a    valid 

resumption-  of  work. 


§  653.     When     right     to     resume 
■work  must  be  exercised. 
§  654.     Conclusions. 


§  651.  Resumption  of  work  prevents  forfeiture. — A 
forfeiture  does  not  ensue  from  the  mere  failure  to  com- 
ply with  the  law.'"  It  requires  the  intervention  of  a 
third  party  and  a  relocation  of  the  ground  before  any 
forfeiture  can  arise.®^  When  thereby  such  forfeiture 
becomes  etfectual,  the  estate  of  the  original  locator  is 
hopelessly  lost,  and  there  is  no  possibility  of  its  b.eing 
restored. 

The  statute  provides  that, — 

Upon  a  failure  to  comply  with  these  conditions, 
the  claim  or  mine  upon  which  such  failure  occurs 
shall  be  open  to  relocation  in  the  same  manner  as  if 
no  location  of  the  same  had  ever  been  made;  2^ro- 

49  Van  Sice  v.  Ibex  M.  Co.,  173  Fed.  895,  897,  97  C.  C.  A.  587.  In 
this  case,  after  the  completion  of  forfeiture  proceedings,  a  dormant 
application  for  patent  veas  resurrected  and  carried  to  a  successful  ter- 
mination in  the  names  of  such  owners,  including  that  of  the  forfeited 
interest.  It  was  held  that  notwithstanding  the  subsequent  issuance  of 
the  patent,  the  owner  who  was  advertised  out  acquired  nothing  under 
the  patent. 

60  An  exception  to  this  rule  is  noted  in  Alaska,  where  a  failure  to 
perform  the  necessary  work  terminates  the  estate  without  the  inter- 
vention of  a  relocator.  Thatcher  v.  Brown,  190  Fed.  70S,  711,  111 
C.  C.  A.  436. 

61  Ante,  §§  643,  645. 


§  651  RESUMPTION   OP  WORK.  '1632 

vided,  that  the  original  locators,  their  heirs,  assigns, 
or  legal  representatives,  have  not  resumed  work  upon 
the  claim  after  failure  and  before  such  location.^^ 

Resumption  of  work  at  any  time  prior  to  the  lawful 
inception  of  an  intervening  right  prevents  forfeiture." 
It  does  not  restore  a  lost  estate." 

In  the  case  of  Justice  Mining  Co.  v.  Barclay,**^ 
Judge  Hawley  expressed  the  view  that  where  reloca- 
tions have  been  made  after  the  owner  of  the  original 
location  has  failed  beyond  the  statutory  time  to  do  the 

62  Rev.   Stats.,   §   2324;    18   Stats.   315;    Comp.   Stats.   1901,  p.   1427; 

5  Fed.  Stats.  Ann.  19. 

53  Belk  V.  Meagher,  104  U.  S.  279,  282,  26  L.  ed.  735,  1  Morr.  Min. 
Eep.  510;  Pharis  v.  Muldoon,  75  Cal.  284,  17  Pac.  70,  71,  15  Morr. 
Min.  Rep.  348;  Belcher  v.  Defarrari,  62  Cal.  160,  163;  McGinnis  v. 
Egbert,  8  Colo.  41,  5  Pac.  652,  15  Morr.  Min.  Rep.  329;  Belk  v.  Meagher, 
3  Mont.  65,  1  Morr.  Min.  Rep.  522;  Gonu  v.  Russell,  3  Mont.  358;  s 
Honaker  v.  Martin,  11  Mont.  91,  27  Pac.  397;  Lacey  v.  Woodward,  5 
N.  M.  583,  25  Pac.  784,  785;  North  Noonday  M.  Co.  v.  Orient  M.  Co., 

6  Saw.  299,  314,  1  Fed.  522,  536,  9  Morr.  Min.  Rep.  529;  Jupiter  M. 
Co.  V.  Bodie  Cons.  M.  Co.,  7  Saw.  96,  115,  11  Fed.  666,  681,  4  Morr. 
Min.  Rep.  411;  Lakin  v.  Sierra  Buttes  M.  Co.,  11  Saw.  231,  241,  25 
Fed.  337,  343;  Little  Gunnell  M.  Co.  v.  Kimber,  1  Morr.  Min.  Rep.  536, 
Fed.  Cas.  No.  8402;  Oscamp  v.  Crystal  River  M.  Co.,  58  Fed.  293,  295, 

7  C.  C.  A.  233,  17  Morr.  Min.  Rep.  651;  Anderson  v.  Eyam,  8  L.  D. 
388;  Justice  M.  Co.  v.  Barclay,  82  Fed.  554,  559;  Jordan  v.  Duke,  6 
Ariz.  55,  53  Pac.  197;  Klopenstine  v.  Hays,  20  Utah,  45,  57  Pae.  712, 
714;  Emerson  v.  McWhirter,  133  Cal.  510,  65  Pac.  1036,  1038,  21 
Morr.  Min.  Rep.  470;  S.  C,  in  error  sub  nom.,  Yosemite  M.  Co.  v. 
Emerson,  208  U.  S.  25,  28  Sup.  Ct.  Eep.  196,  52  L.  ed.  374;  Crown  Point 
G.  M.  Co.  V.  Crismon,  39  Or.  364,  65  Pac.  87,  88,  21  Morr.  Min.  Rep. 
406;  Buffalo  Z.  &  C.  Co.  v.  Crump,  70  Ark.  525,  91  Am.  St.  Rep.  87, 
69  S.  W.  572,  576,  22  Morr.  Min.  Rep.  276;  Little  Dorrit  G.  M.  Co.  v. 
Arapahoe  G.  M.  Co.,  30  Colo.  431,  71  Pac.  389,  391;  Field  v.  Tanner, 
32  Colo.  278,  75  Pac.  916,  919;  Thornton  v.  Kaufman,  40  Mont.  282, 
135  Am.  St.  Rep.  618,  106  Pac.  361,  362;  Peachy  v.  Gaddis  (Ariz.),  127 
Pac.  739,  742. 

0*  Knutson  v.  Fredlund,  56  Wash.  634,  106  Pac.  200,  202.  This  rule 
does  not  apply  in  Alaska.  Thatcher  v.  Brown,  190  Fed.  708,  711,  111 
C.  C.  A.  436. 

65  82  Fed.  554. 


1633  WHAT   CONSTITUTES  VALID  RESUMPTION.  §  652 

necessary  assessment  work,  but  such  relocations  are 
afterward  abandoned,  and  thereafter  the  owner  of  the 
original  location  performs  assessment  work  tuhich 
revives  his  rights,  the  fact  of  such  intennediate  reloca- 
tions cannot  aid  one  who  subsequently  attempts  to  re- 
locate the  same  ground.  These  views  were  quoted 
with  approval  by  the  supreme  court  of  Utah.°°  This 
is  not  altogether  consistent  with  the  theory  that  after 
a  valid  relocation  has  once  been  made  the  rights  of 
the  original  locator  have  been  completely  lost.  Yet 
the  effect  given  to  the  relocation  under  the  statute  is 
that  of  an  original  location, — the  same  "as  if  no  loca- 
tion of  the  same  had  ever  been  made."  If  after  inter- 
vening valid  relocations  are  made,  and  become  subject 
to  forfeiture,  the  original  owner  may,  by  simply  resum- 
ing work,  reinstate  his  original  status,  his  original 
estate  must  have  simply  been  in  suspense  during  the 
period  when  the  ground  was  covered  by  valid  reloca- 
tions. It  seems  to  us  that  the  new  entry  of  the  re- 
locator  terminates  the  estate  of  the  original  locator, 
and  in  turn  the  estate  of  the  relocator  can  only  be 
divested  by  a  new  entry  and  a  new  location.  This  is 
in  consonance  with  the  rule  discussed  in  a  previous 
section,^^  as  between  junior  and  senior  conflicting  loca- 
tions. 

§  652.  What  constitutes  a  valid  resumption  of  work. 
"With  the  doctrine  established,  that  all  forfeitures 
are  odious,  and  that  one  seeking  to  avail  himself  of  the 
failure  of  a  preceding  locator  to  comply  with  the  law, 
in  order  to  secure  a  relocation  of  the  ground,  must 
establish  such  failure  by  clear  and  convincing  proof/' 

66  Klopenstine  v.  Hays,  20  Utah,  45,  57  Pac.   712,  714. 

87  §  645a. 

68  A7ite,  §  645. 

Lindley  on  M. — 103 


§  652  RESUMPTION   OP   WORK.  1634 

it  is  natural  that  the  courts  should  lean  toward  a  liberal 
construction  of  the  law  of  resumption.  In  order  that 
we  may  be  able  to  intelligently  deduce  a  correct  rule 
from  the  decisions,  it  is  necessary  for  us  to  briefly  con- 
sider the  leading  cases  and  the  facts  surrounding  them. 
For  illustrative  purposes,  in  epitomizing  these  cases, 
let  us  assume  that  in  all  of  them  the  original  locator 
and  alleged  delinquent  is  represented  by  "A"  and  the 
relocator  by  "B,"  This  will  avoid  confusion  and 
more  readily  exhibit  the  analogies  or  differences. 

Case  1. — A,  owning  two  claims,  performed  on  the 
two  during  the  year  1880  only  one  hundred  dollars' 
worth  of  work;  that  is,  fifty  dollars  upon  each.  His 
claims  were  subject  to  relocation  on  January  1,  1881. 
During  January  of  that  year  he  performed  work  that 
was  actual  aud  valuable,  to  the  extent  of  twenty-four^ 
dollars  on  the  two  claims,  or  twelve  dollars  each.  No 
other  or  further  work  was  performed.  B  entered  and 
located  in  August,  1881.  It  was  held  that  the  work 
done  by  A  in  January  constituted  a  sufficient  resump- 
tion; B's  relocation  was  therefore  void. 

In  affirming  a  judgment  in  A's  favor  the  supreme 
court  of  California  said: — 

It  is  not  necessary  to  decide  that  an  attempt  to 
assert  a  continuous  right  may  be  based  upon  a  pre- 
tense of  work  so  plainly  a  sham  as  that  it  will  be  dis- 
regarded; but  here  the  work  done  was  actual  and 
valuable.  The  letter  of  the  statute  upholds  the  view 
as  to  the  resumption  of  work  taken  by  the  court 
below,  and  forfeitures  and  denouncements  are  not  to 
be  favored  by  basing  them  upon  language  which 
does  not  plainly  and  unmistakably  provide  for 
them."' 

69  Belcher  v.  Deferrari,  62  Cal.  160,  163. 


1635  WHAT  CONSTITUTES  VALID  RESUilPTION.  §  652 

Mr.  Morrison  says  of  this  case,  ''Such  a  decision  is 
only  trifling  with  the  law  and  the  rights  of  parties 
based  upon  the  law."^° 

The  supreme  court  of  Montana  quotes  this  approv- 
ingly, and  adds  the  further  comment: — 

The  result  of  the  holding  in  Mining  Co.  v.  Defer- 
rari,  supra,  is  to  defeat  the  real  objects  of  the  stat- 
ute, which  are  the  exploration  and  development  of 
mining  claims.  Everj^  person  who  continues  in  pos- 
session of  such  property  upon  the  public  domain  of 
the  United  States  without  performing  annually  the 
labor  that  has  been  specified,  violates  the  conditions 
of  the  grant  from  the  government.  The  resumption 
of  work  by  the  original  locator,  whose  rights  are  sub- 
ject to  forfeiture  without  the  expenditure,  with 
reasonable  diligence,  during  the  year,  of  the  sum  of 
one  hundred  dollars  for  labor  or  improvements  upon 
the  mine,  is  an  evasion  of  the  statute." 

The  latest  exposition  of  the  law  by  the  supreme  court 
of  California  will  be  found  stated  under  Case  3,  post. 

Case  2. — A  located  the  claim  in  controversy  on  July 
10, 1884.  Prior  to  January  1,  1886,  he  performed  labor 
to  the  aggregate  value  of  sixty  dollars  only,  the  last 
work  having  been  done  on  December  24,  1885,  On 
January  1,  1886,  at  1  o  'clock  in  the  morning,  B  entered 
and  posted  a  notice  of  relocation.  On  January  1st 
and  2d,  A  performed  labor  of  the  value  of  ten  dollars, 
and  quit.  On  Januarj^  5th,  B  marked  the  boundaries 
of  his  relocation,  and  otherwise  complied  with  the  law. 
Thereafter  both  A  and  B  performed  the  annual  work. 

The  supreme  court  of  California  held"  that  the  relo- 
cation not  having  been  completed  until  Januaiy  5th, 

60  Morr.  Min.  Rights,  14th  ed.,  p.   126. 
«i  Honaker  v.  Martin,  11  Mont.  91,  97,  27  Pac.  397,  398. 
62  Pharis   v.   Muldoon,   75   Cal.   284,   17   Pac,    70,   71,   15   Morr.    Min. 
Bep.  348. 


§  652  RESUMPTION  OP  WORK.  1636 

it  was  void,  as  in  tlie  meanwhile  A  had  resumed  work, 
citing  Case  1,  supra.  In  addition  to  this,  the  court  inti- 
mated that  B  was  a  moral  delinquent,  because  he 
entered  by  stealth  at  an  unusual  hour.  That  the  relo- 
cation was  made  at  an  unusual  hour  from  a  profes- 
sional standpoint  is  quite  true.  It  is  also  true  that  this 
hour  is  the  fashionable  one  for  resuming  work  and 
making  relocations  in  mining  camps.  There  is  noth- 
ing in  the  record  justifying  the  suggestion  that  B's 
entry  was  by  stealth. 

Case  2a. — A  located  the  claim  in  controversy  Janu- 
ary 1,  1898.  On  December  26,  1899,  he  commenced  to 
do  the  assessment  work  and  continued  until  Decem- 
ber 30,  1899  (Saturday  evening),  when  he  quit  work, 
leaving  his  tools  on  the  ground  intending  to  resume 
work  the  following  Monday,  which  he  did,  and  there- 
after prosecuted  it  diligently  until  more  than  the  legal 
requirements  were  satisfied.  B  entered  and  relocated 
a  few  moments  after  midnight  December  31,  1899. 
Held,  by  a  majority  of  the  court,  Sanborn,  J.,  vigor- 
ously dissenting,  that  A's  acts  constituted  a  valid 
resumption  and  B's  relocation  was  void.^^ 

Case  3. — A  located  two  claims  in  1885,  He  did  prac- 
tically no  work  until  January,  1893,  when  he  worked 
about  three  hours  upon  each  claim  on  one  day,  and  on 
the  next  sunk  a  shaft  about  six  feet  deep  on  one  of 
them.  This  was  all.  The  supreme  court  of  California 
upheld  as  correct  the  following  instructions  to  the 
jury:"— 

63  Fee  V.  Durham,  121  Fed.  468,  57  C.  C.  A.  584,  citing  and  follow- 
ing the  two  California  cases  1  and  2,  supra.  Willitt  v.  Baker,  133  Fed. 
937,  is  a  similar  case  and  follows  Fee  v.  Durham. 

6*  McCormick  v.  Baldwin,  104  Cal.  227,  228,  37  Pac.  903,  904. 


1637  WHAT   CONSTITUTES  VALID   RESUMPTION.  §  652 

A  party  cannot  hold  a  mining  claim  for  several 
years  without  doing  in  any  year  the  work  required, 
by  simply  going  on  it  at  the  beginning  of  each  year 
and  doing  a  few  hours'  work,  with  no  bona  fide  intent 
to  comply  with  the  statutory  requirement  as  to  the 

amount  of  work  to  be  done It  is  against  the 

policy  of  the  law,  and  a  fraud  against  the  govern- 
ment and  the  law,  to  hold  quartz  claims  by  merely 
doing  a  few  dollars'  worth  of  work  thereon  at  or  near 
the  beginning  of  the  year  next  following  the  year  on 
which  claimant  failed  to  do  the  necessary  work,  when 
such  work  is  not  commenced  with  the  bona  fide 
intention  of  being  continued  till  the  full  amount  is 
done.  Such  labor  so  done  is  a  mere  pretense  and  a 
sham,  and  will  not  prevent  the  relocation  for  want  of 
necessary  work. 

The  court  makes  no  reference  to  its  previous  deci- 
sions in  either  Case  1  or  2,  supra. 

Case  4. — A,  to  avoid  a  forfeiture  for  failure  to  per- 
foiTQ  work  he  should  have  done  in  1887,  relocated  the 
claim  January  1,  1888.  In  December,  1889,  he  made  a 
contract  with  a  third  party  to  represent  the  mine  for 
1889.  The  employee  labored  from  December  22,  1889, 
to  January  12,  1890,  and  received  from  A  one  hundred 
dollars.  The  value  of  this  labor,  estimated  by  the 
laborer,  was  about  fifty  dollars.  Logs,  slabs,  and  lum- 
ber, of  the  value  of  sixty-three  dollars,  were  conveyed 
to  the  premises,  but  never  used.  Mining  implements 
were  brought  there,  used  slightly,  and  carried  away. 
B  relocated  the  claim  April  25,  1890.  A  claimed  that 
the  ground  was  not  subject  to  relocation,  as  he  had 
resumed  work. 

The  supreme  court  of  Montana,  in  reversing  a  judg- 
ment in  favor  of  A,  held  that  when  an  original  locator 
avails  himself  of  the  statutory  privilege  of  resuming 
work  to  preserve  his  estate  from  forfeiture,  he  must 


§  652  RESUMPTION  OP  WORK.  1638 

prosecute  the  same  with  reasonable  diligence  until  the 
requirement  for  the  annual  labor  and  imj)rovements 
had  been  obeyed.*'^ 

The  same  tribunal  reannounced  this  doctrine  in  later 
cases.®^ 

Case  5. — ^A  located  in  1864,  and  the  location  was 
valid  and  subsisting  when  the  act  of  May  10,  1872,  was 
passed.  No  work  was  performed,  however,  after  that 
date  until  June,  1875,  when  A  resumed  work  upon  the 
claims  and  did  enough  to  re-establish  his  original 
rights.  B  attempted  to  relocate  on  December  19,  1876. 
It  was  held  that  A's  resumption  protected  the  claim 
from  relocation  until  January  1,  1877.  There  could 
be  no  forfeiture  until  that  date.  B's  relocation  was 
therefore  void,  and  did  not  take  effect  on  January  1, 
1877,  although  A  failed  to  perform  any  work  during  ^ 
the  year  1876.^' 

Case  6. — A  located  a  claim  January,  1882.  On 
December  31,  1883,  not  having  theretofore  performed 
his  assessment  work,  he  went  on  the  ground  and  was 
making  preparations  to  resume  work,  when  on  January 
1, 1884,  B  entered  and  relocated  the  claim.  A  remained 
in  possession  for  about  six  days,  and  did  work  thereon 
to  the  amount  of  about  sixty  dollars,  when  he  quit  and 
went  away.  It  was  held  that  B's  relocation  was  pre- 
mature.^* 

65  Honaker  v.  Martin,  11  Mont.  91,  98,  27  Pac.  397,  398;  cited  in 
Bishop  V.  Baisley,  28  Or.  119,  41  Pac.  936,  938. 

66  Hirschler  v.  McKendricks,  16  Mont.  211,  40  Pac.  290;  McKay  v, 
McDougall,  25  Mont.  258,  87  Am.  St.  Eep.  395,  64  Pac.  669. 

6T  Belk  V.  Meagher,  3  Mont.  65,  1  Morr.  Min.  Rep.  522;  S.  C,  on 
appeal,  104  U,  S.  279,  26  L.  ed.  735,  1  Morr.  Min.  Eep.  510.  See, 
a7ite,  §   218. 

68  Jordan  v.  Duke,  6  Ariz.  55,  53  Pac.  197,  201. 


1639  WHEN   WORK    MUST  BE  RESUMED.  §  653 

Case  7. — A  located  a  claim  in  1896,  and  performed 
the  work  for  1897.  On  December  30,  1898,  lie  went  on 
the  claim  and  worked  that  and  the  following  day. 
January  1,  1899,  was  Sunday.  On  this  day  he  rested, 
resuming  work  again  January  2d,  and  continuing 
thenceforward  until  January  25th,  completing  the  full 
amount  required  to  be  done.  B  went  on  the  ground 
in  the  afternoon  of  December  31st,  and  saw  no  one  at 
work  or  evidence  of  work  being  done.  He  returned  to 
the  claim  about  midnight,  and  shortly  after,  on  eJanu- 
ary  1st  (Sunday),  relocated  the  claim.  It  was  held 
that  A's  resumption  was  valid,  and  the  relocation 
void.*'' 

§  653.  When  right  to  resume  work  must  be  exer- 
cised.— We  have  heretofore'"  discussed  the  rulings  of 
the  courts  of  last  resort  upon  the  subject  of  relocation 
of  claims  subject  to  forfeiture,  and  have  adopted  the 
view  announced  by  Judge  Hallett,  that  the  right  of 
the  original  locator  to  resume  work  and  prevent  for- 
feiture lapses,  unless  such  right  is  exercised  before 
another  has  taken  possession  of  the  property  with 
intent  to  relocate  it.  The  first  step  lawfully  taken  by 
a  relocator  after  a  claim  becomes  subject  to  forfeiture 
will  protect  him  for  the  period  of  time  fixed  by  law 
within  which  he  is  called  upon  to  perfect  his  relocation. 
An  intermediate  resumption  by  the  delinquent  original 
locator  cannot  cut  off  this  privilege.  We  have  endeav- 
ored to  present  this  phase  of  the  law  fully  in  the  sec- 
tion referred  to. 

69  Emerson  v.  McWhirter,  133  Cal.  510,  65  Pac.  1036,  1038,  21  Morr. 
Min.  Rep.  470;  S.  C,  in  error  sub  nom.,  Yosemite  M.  Co.  v.  Emerson, 
208  U.  S.  25,  31,  28  Sup.  Ct.  Rep.  196,  52  L.  ed.  374.  This  is  sub- 
Btantially  the  same  as  Case  2a,  supra. 

70  Ante,  §  408. 


§  654  RESUMPTION   OP   WORK.  1640 

As  there  noted,  the  supreme  court  of  Montana  does 
not  agree  with  the  foregoing  deductions,  but  is  of  the 
opinion  that  a  resumption  at  any  time  prior  to  the 
completion  of  the  relocation  will  defeat  the  relocation. 

§  654.  Conclusions. — ^We  are  justified  in  deducing 
the  following  conclusions: — 

(1)  In  order  to  prevent  a  forfeiture  for  failure  to 
perform  the  assessment  work  required  by  law,  the 
claimant  must  resume  work  in  good  faith,  and  prose- 
cute the  same  continuously  and  without  unreasonable 
interniption  until  the  full  amount  of  labor  is  per- 
formed,— that  is,  one  year's  delinquency  must  be  made 
up.  It  is  not  necessary  that  work  should  be  done  for 
every  year  that  the  claim  was  idle.^^  Nothing  less 
than  the  outward  manifestation  of  an  intent  to  atone 
for  the  delinquency  by  a  diligent  and  continuous 
prosecution  of  substantial  and  valuable  development 
work  will  satisfy  the  law;  that  while  the  claim  will  be 
protected  from  relocation  so  long  as  the  claimant  is 
actually  engaged  in  making  up  the  deficiencies,  a  sus- 
pension of  work  for  any  appreciable  period  before  the 
full  amount  required  has  been  performed  will  subject 
the  claim  to  relocation. 

(2)  The  right  to  resume  work  is  lost  where  a  quali- 
fied relocator  enters  and  initiates  a  relocation.  A 
resumption  between  the  initiatory  and  final  acts  of 
relocation  will  not  avail." 

71  Crown  Point  G.  M.  Co.  v.  Crismon,  39  Or.  364,  65  Pac.  87,  88,  21 
Morr.  Min.  Eep.  406;  Temescal  Oil  M.  &  D.  Co.  v.  Salcido,  137  Cal. 
211,  69  Pac.  1010,  1011,  22  Morr.  Min.  Rep.  360.  Principle  applied  in 
Field  V.  Tanner,  32  Colo.  278,  75  Pac.  916. 

T2  See  discussion,  ante,  §  408. 


TITLE     VII. 

OF  THE  PROCEEDINGS   TO   OBTAIN  UNITED 
STATES  PATENT,  AND  THE  TITLE  CON- 
VEYED BY  THAT  INSTRUMENT. 


Chapteb 

I.  THE  LAND  DEPARTMENT  AND  ITS  FUNCTIONS. 

n.  THE  SUEVEY  FOR  PATENT. 

III.  THE    APPLICATION    FOR    PATENT    AND    PROCEEDINGS 
THEREON. 

lY.  THE  ADVERSE  CLAIM. 

V.  ACTIONS  TO  DETERMINE  ADVERSE  CLAIMS,  ANT)    THE 
EFFECT  OF  JUDGMENT  THEREON. 

VL  THE    CERTIFICATE     OF     PURCHASE,    AND    TITLE    CON- 
VEYED THEREBY. 

yiL  THE  PATENT. 

(1641) 


CHAPTER    I. 


THE  LAND  DEPARTMENT  AND  ITS  FUNCTIONS. 


§  658.     Introductory. 

§  659.  The  land  departmont — 
How  constituted. 

§  660.  Registers  and  receivers — 
Their  appointment,  pow- 
ers, and  duties. 

§  661.  The  surveyors-general  and 
their  deputies. 

§  662.  Commissioner  of  the  gen- 
eral land  oflBce  —  Ap- 
pointment, powers  and 
duties. 


§  663.     Secretary  of  the  interior. 

§  664.  Jurisdiction  of  the  land 
department. 

§  665.  The  effect  of  the  decisions 
of  the  land  department 
upon  questions  of  fact. 

§  666.  Decisions  of  the  land  de- 
partment upon  questions 
of  law  and  mixed  ques- 
tions of  law  and  fact. 


§  658.  Introductory. — As  an  appropriate  introduc- 
tion to  a  discussion  of  the  proceedings  necessary  to  ob- 
tain the  ultimate  title  to  a  mining  claim  by  the  issuance 
of  a  United  States  patent,  as  well  as  for  the  purpose  of 
determining  the  force  and  effect  of  such  patent  when 
issued,  it  is  advisable  to  consider  in  brief  outline  the 
nature  of  the  tribunal  charged  with  the  duty  of  admin- 
istering the  public  land  laws,  the  functions  of  such 
tribunal,  and  the  scope  of  its  jurisdiction.  While  in 
doing  so  we  may  reach  beyond  the  legitimate  scope  of 
this  treatise,  yet,  considering  the  relationship  existing 
between  the  department  and  the  courts  which  at  times 
are  called  upon  to  construe  its  rulings  and  judgments, 
and  in  certain  phases  of  the  mining  laws  are  supposed 
to  perform  certain  auxiliary  functions,  we  deem  it  im- 
portant that  the  subject  should  be  briefly  presented. 

§  659.  The  land  department — How  constituted. — 
What  is  now  known  as  the  general  land  office  was  orig- 
inally a  bureau  of  the  treasury  department,  under  the 
law  of  April  25,  1812 ;  but  upon  the  creation  of  the  de- 

(1643) 


§  660         THE    LAND    DEPARTMENT    AND    ITS    FUNCTIONS.  1644 

partment  of  the  interior/  the  land  office  was  trans- 
ferred to  that  department,  which  has  ever  since  super- 
vised the  sale  and  disposal  of  puolic  lands. 

It  consists  of  the  secretary  of  the  interior,  the  com- 
missioner of  the  general  land  office,  and  their  subordi- 
nates, and  as  thus  constituted  is  a  special  tribunal, 
vested  with  certain  judicial  powers  to  hear  and  deter- 
mine claims  to  the  public  lands,  and  with  authority  to 
execute  its  judgments  by  conveyances  to  the  parties  en- 
titled to  them.^  Courts  may  not  anticipate  its  action 
or  take  upon  themselves  the  administration  of  the  land 
grants  of  the  United  States.^ 

The  subordinate  officers  of  the  department  intimately 
associated  with  the  administration  of  the  public  land 
system  are,  the  registers  and  receivers,  surveyors-gen- 
eral and  their  deputies. 

§  660.  Registers  and  receivers — Their  appointment, 
powers,  and  duties. — Registers  and  receivers  are  ap- 
pointed by  the  president,  with  the  advice  and  consent 
of  the  senate,  to  hold  office  for  four  years.  They  are 
required  to  reside  at  the  place  where  the  land  office  to 
which  they  are  appointed  is  located,  and  to  execute  a 
bond  before  entering  upon  their  office.* 

They  are  empowered  in  the  first  instance  to  pass 
upon  all  claims  relating  to  lands  within  their  districts,' 

1  March  3,  1849,  9  Stats,  at  Large,  p.  395. 

2  United  States  v.  Winona  &  St.  Paul  R.  R.,  67  Fed.  948,  955,  15  C.  C, 
A.  96;  Germania  Iron  Co.  v.  James,  89  Fed.  811,  813,  32  C.  C.  A.  348; 
James  v.  Germania  Iron  Co.,  107  Fed.  597,  600,  46  C.  C.  A.  476;  King 
V.  McAndrews,  111  Fed.  860,  863,  50  C.  C.  A.  29;  United  States  v.  North- 
ern Pac.  Ry.  Co.,  95  Fed.  864,  870,  37  C.  C.  A.  290. 

3  Oregon  v.  Hitchcock,  202  U.  S.  60,  70,  26  Sup.  Ct.  Rep.  568,  50 
L.  ed.  935. 

*  Rev.  Stats.,  §§  2234,  2237;  30  Stat.  234;  Comp.  Stats.  1901,  p.  1366; 
6  Fed.  Stats.  Ann.  227,  229. 

5  Potter  V.  United  States,  107  U.  S.  126,  129,  1  Sup.  Ct.  Rep.  524, 
27  L.  ed.  330;  Wilcox  v.  Jackson,  13  Pet.  498,  511,  10  L.  ed.  264. 


1645  REGISTERS  AND  RECEIVERS.  §  660 

except  where  mineral  applications  are  adversed,  in 
which  event  the  question  of  conflicting  claims  is  re- 
ferred to  the  courts,  and  in  case  of  a  few  other  filings, 
such  as  forest,  lieu,  Sioux,  half-breed  and  other  forms 
of  scrip." 

The  measure  of  their  authority  is  the  acts  of  congress 
and  such  regulations  of  the  general  land  office  as 
may  have  been  made  in  pursuance  of  law.  They  have 
no  powers  except  such  as  are  derived  from  these 
sources.^ 

Their  acts  are  subject  to  the  supervision  and  control 
of  the  commissioner  of  the  general  land  office,  whether 
the  matter  is  brought  to  his  attention  by  appeal  or 
otherwise.®  Their  conclusions  are  at  best  but  advis- 
ory.^ 

They  are  required  to  exercise  a  judicial  judgment 
and  discretion,  and  their  action  relating  to  the  disposal 
of  public  lands  will  not  be  interfered  with  by  man- 
damus or  injunction." 

Although  each  land  office  to  be  legally  constituted 
and  authorized  to  do  business  must  have  a  register  and 
receiver,  they  need  not  act  jointly  in  administering 
oaths  or  taking  testimony." 

In  passing  upon  the  sufficiency  of  proofs,  they  are 
not  required  to  act  concurrently,  all  that  the  law  re- 
quires being  that  they  shall  both  be  satisfied. ^^ 

6  Rev.  Stats.,  §  2326;  17  Stat.  &3;  Comp.  Stats.  1901,  p.  1431;  5 
Fed.  Stats.  Ann.  35. 

7  Parker  v.  Duff,  47   Cal.  554,  561. 

8  Rev.  Stats.,  §  2273;  Hosmer  v.  Wallace,  47  Cal.  461,  471;  Barnard 
V.  Ashley,  18  How.  43,  45,  15  L.  ed.  286;  Hay  del  v.  Dufresne,  17  How. 
22,  29,  15  L.  ed.  115. 

8  Lawrence  v.  Potter,  22  Wash.  32,  60  Pac.  147. 

10  Litchfield  v.  Register  and  Receiver,  1  Woolw.  299,  Fed.  Cas.  No. 
8388;  Mississippi  v.  Johnson,  4  Wall.  475,  498,  18  L.  ed.  440;  Koehler 
V.  Barin,  25  Fed.  161,  166. 

11  Peters  v.  United  States,  2  Okl.  116,  33  Pac.  1031,  1037. 

12  Potter  V.  United  States,  107  U.  S.  126,  129,  1  Sup,  Ct.  Rep.  524, 


§  660  THE  LAND  DEPARTMENT  AND  ITS  FUNCTIONS.  1646 

Strictly  speaking,  the  local  land  office  is  not  a  place 
of  record.  Plats  of  approved  surveys  of  the  public 
lands  are  deposited  there,  and  tract-books  are  kept  in 
which  are  noted  the  various  transactions  concerning 
lands  within  the  district.  These  records  are  open  to 
inspection  on  the  part  of  the  public,  subject  only  to  the 
restriction  that  such  examination  shall  not  interfere 
with  the  orderly  dispatch  of  public  business."  Where 
application  is  made  to  enter  any  particular  tract  or 
part  of  a  tract  of  surveyed  lands,  the  status  of  the  land 
as  to  antecedent  applications  or  filings  is  ascertained 
from  an  inspection  of  these  books,  and  the  judgment  of 
the  local  officers  in  accepting  or  refusing  a  filing  or  ap- 
plication is  based  upon  the  condition  of  the  land  as 
shown  by  these  notations.^* 

The  local  officers  are  clothed  with  limited  powers. 
They  can  issue  subpoenas  for  the  attendance  of  wit- 
nesses, but  power  to  punish  for  refusal  to  appear  and 
testify  is  vested  in  the  district  courts  of  the  United 
States."* 

Testimony  taken  before  them  is  reduced  to  writing 
and  transmitted  with  their  rulings  to  the  commissioner 
of  the  general  land  office.  They  receive  all  testimony 
offered,  and  while  ruling  nominally  on  objections  made 
as  to  relevancy,  competency,  or  materiality,  no  evi- 
dence is  excluded  as  the  result  of  an  adverse  ruling 
except  such  as  is  obviously  irrelevant.     The  practice 

27  L.  ed.  330;  Lytle  v.  Arkansas,  9  How.  314,  320,  13  L.  ed.  153;  Smith 
V.  United  States,  170  U.  S.  372,  377,  18  Sup.  Ct.  Kep.  626,  42  L.  ed. 
1074. 

13  Secretary's  Instructions,  27  L.  D.  625;  James  v.  Germania  Iron 
Co.,  107  Fed.  597,  604,  46  C.  C.  A.  476. 

1*  Germania  Iron  Co.  v.  James,  89  Fed.  811,  815,  32  C.  C.  A.  348; 
James  v.  Germania  Iron  Co.,  107  Fed.  597,  604,  46  C.  C.  A.  476. 

X4a  33  Stats,  at  Large,  186,  Act  of  April  19,  1904,  eh.  1398. 


1647  THE  SURVEYORS-GENERAL.  §  661 

before  these  officers  is  governed  by  rules  and  regula- 
tions prescribed  by  the  general  land  office/^ 

Their  decisions,  being  subject  to  review  by  the  com- 
missioner of  the  general  land  office,  are  not  final  and 
conclusive,^®  although  they  may  become  so  by  failure 
to  appeal  within  the  time  prescribed  by  the  rules." 

All  papers  filed  in  proceedings  had  before  them  are 
transmitted  to  the  general  land  office,  where  they  re- 
main permanently. 

Where  registers  or  receivers  are  disqualified  from 
acting  by  reason  of  consanguinity  or  other  cause,  such 
disqualification  is  absolute  and  cannot  be  waived  by 
the  parties,"*  and  the  commissioner  of  the  general  land 
office  has  full  power  to  designate  proper  officers  to  pre- 
side in  their  stead."" 

§  661.  The  surveyors -general  and  their  deputies. — 
The  surveyors-general  are  appointed  by  the  president 
for  the  respective  surveying  districts.  They  have 
charge  of  the  public  surveys  in  subordination  to  the 
commissioner  of  the  general  land  office,  and  exercise  a 
direct  supervision  over  the  surveys  of  mineral  lands. 
They  have  the  appointment  of  deputy  mineral  survey- 
ors at  their  discretion,^*  but  all  appointments  must  be 

15  See  "Rules  of  Practice,"  issued  in  pamphlet  form  by  the  depart- 
ment, and  39  L.  D.  395. 

16  Barnard  v.  Ashley,  18  How.  43,  44,  15  L.  ed.  2S5;  Rush  v.  Valen- 
tine, 12  Neb.  513,  11  N.  W.  746;  Johnson  v.  Townsley,  13  Wall.  72, 
82,  20  L.  ed.  485;  Kern  Oil  Co.  v.  Clarke  (on  review),  31  L.  D.  288. 

17  United  States  v.  Marshall  S.  M.  Co.,  129  U.  S.  579,  587,  9  Sup. 
Ct.  Rep.  343,  32  L.  ed.  734,  16  Morr.  Min.  Rep.  205;  Seymour  v. 
Fisher,  16  Colo.  188,  27  Pac.  240,  242;  Craig  v.  Leitensdorfer,  123 
U.  S.  189,  205,  8  Sup.  Ct.  Rep.  85,  30  L.  ed.  114. 

iTa  Runyan  v.  Spurgin,  41  L.  D.  392. 

17b  George  W.  Dally,  41  L.  D.  295;  Act  of  Jan.  11,  1894,  28  Stats,  at 
Large,  26. 

18  In  re  Jacobs,  21  L.  D.  379.  This  discretionary  power  will  not  be 
interfered  with  by  the  land  department  unless  good  cause  is  shown.     In 


§  661  THE  LAND  DEPARTMENT  AND  ITS  FUNCTIONS.  1648 

submitted  to  the  commissioner  of  the  general  land  office 
for  approval, ^^  and  their  action  in  suspending  or  re- 
voking appointments  of  deputies  is  subject  to  review 
by  the  general  land  office.^" 

The  appointment  is  for  no  fixed  period,  and  where 
made  ''during  the  pleasure  of  the  surveyor-general" 
it  is  not  terminated  by  failure  to  renew  the  deputy's 
bond." 

The  primary  obligation  of  a  deputy  is  contractual 
and  is  to  the  claimant  for  whom  his  services  are  ren- 
dered. The  surveyor-general  exercises  supervisory 
authority  in  the  technical  execution  of  the  survey,  and 
maximum  charges  for  the  service  may  be  fixed  by  the 
commissioner  of  the  general  land  office. 

The  deputies  are  assigned  to  make  mineral  surveys 
upon  the  nomination  of  the  applicant  who  makes  a 
private  contract  with  the  deputy,  which  is  no  concern  ^ 
of  the  government.  The  government  has  no  authority 
to  compel  a  deputy  who  is  in  default  or  delinquent  or 
his  bondsmen  to  do  the  work,  but  his  appointment  as 
a  deputy  may  be  revoked  for  incompetence  or  neglect. 
In  such  cases  the  claimant  must  apply  for  an  amended 
survey  and  make  provision  for  its  execution.^^ 

The  field  of  action  of  these  deputies  is  confined  to 
the  surveying  of  mining  claims  and  to  matters  incident 
thereto.  Their  work  must  be  done  in  conformity  to 
regulations  prescribed  by  the  surveyor-general.  They 
are  required  to  take  an  oath  and  to  execute  a  bond  to 

re  Brown,  27  L.  D.  582;  In  re  Kennedy,  38  L.  D.  289.  See  Amendment 
to  Eegulations,  40  L.  D.  215. 

19  in  re  Contzen,  38  L.  D.  346.     See,  also,  Min.  Reg.,  pars.  116-119, 
37  L.  D.  497,  also  in  Appendix. 

20  In  re  Gorlinski,  20  L.  D.  283. 

21  In  re  Powel,  39  L.  D.  177;  In  re  Hopkins,  40  L.  D.  318. 

22  Golden  Rule  Co.,  37  L.  D.  95. 


1649  THE  SURVEYORS-GENERAL.  §  661 

the  United  States,  as  are  many  public  ofiScers.  Within 
the  limits  of  their  authority  they  act  in  the  stead  of 
the  surveyor-general  and  under  his  direction,  and  in 
that  sense  are  his  deputies.  The  work  which  they  do 
is  the  work  of  the  government  and  the  surveys  which 
they  make  are  its  surveys.  The  right  performance  of 
their  duties  is  of  real  concern  not  only  to  those  at 
whose  solicitation  they  act,  but  also  to  the  owners  of 
adjacent  and  conflicting  claims  and  to  the  govern- 
ment."^ 

The  field  work  of  the  deputies  is  returned  to  the  sur- 
veyor-general, who  must  approve  the  surveys  before 
they  can  be  utilized  as  the  basis  of  patent  applications. 
The  bond  required  of  deputy  mineral  surveyors  is  the 
sum  of  ten  thousand  dollars,  to  be  approved  by  the 
commissioner  of  the  general  land  office.'*  They  may 
hold  a  commission  in  more  than  one  state,^^  but  are 
not  permitted  to  make  mineral  surveys  within  a  dis- 
trict for  which  they  hold  no  commission.  They  are 
officers  of  the  land  department,  and  as  such  are  strictly 
under  the  highest  obligations  to  perform  their  duties 
in  accordance  with  instructions.  Being  such  officers, 
their  reports  and  acts  must  be  accepted  as  prima  facie 
true.'^  They  are  not  permitted  to  act  in  the  double 
capacity  of  surveyors  and  attorneys  for  mineral  ap- 
plicants at  the  same  time." 

The  land  department  at  one  time  held  that  they  were 
not  prohibited  from  making  mineral  entries  within  the 

23  Waskey  v.  Hammer,  223  U.  S.  85,  92,  32  Sup.  Ct.  Eep.  187,  56 
L.  ed.  359. 

24  In  re  Hopkins,  40  L.  D.  318.     See,  also,  40  L.  D.  215. 

25  In  re  Helmick,  20  L.  D.  163. 

26  Gowdy  V.  Kismet  G.  M.  Co.,  24  L.  D.  191. 

27  Min.  Eeg.,  par.  128,  Appendix. 

Lindley  on  M. — 104 


§  661  THE  LAND  DEPARTMENT  AND  ITS  FUNCTIONS.  1650 

district  for  whicli  they  are  appointed.''  By  subse- 
quent rulings  it  has  been  determined  that  they  come 
within  the  inhibition  of  section  four  hundred  and  fifty- 
two  of  the  Eevised  Statutes,  and  are  prohibited  from 
entering  or  becoming  interested  in  any  of  the  public 
lands  of  the  United  States,-'  upon  penalty  of  forfeiture 
of  their  official  position.^" 

Aside  from  the  questions  arising  by  virtue  of  the 
relation  existing  between  deputy  mineral  surveyors 
and  the  land  department,  and  the  inhibition  against 
their  becoming  interested  in  unpatented  mining  claims 
or  other  public  land  under  penalty  of  forfeiture  of  their 
official  positions,  the  status  of  mining  claims  where 
deputy  mineral  surveyors  are  locators  has  long  been 
a  mooted  question,  with  decisions  of  the  state  and 
lower  federal  courts  divided  as  to  the  result.'' 

28  Lock  Lode,  6  L.  D.  105. 

29  In  re  Neill,  24  L.  D.  393;  Floyd  v.  Montgomery,  26  L.  D.  122,  136; 
In  re  Maxwell,  29  L.  D.  76;  In  re  Baltzell,  29  L.  D.  333. 

30  In  re  Bradford,  36  L.  D.  61;  In  re  Contzen,  37  L.  D.  497,  38 
L.  D.  346;  In  re  Powel,  39  L.  D.  177.  See,  also,  par.  128,  Min. 
Keg.  The  decision  of  In  re  Leffingwell,  30  L.  D.  139,  had  the  tendency 
to  suggest  that  deputies  might,  under  certain  circumstances,  enter  pub- 
lic lands,  but  subsequently  the  department  referred  to  the  Leffingwell 
case  as  special  and  peculiar,  and  held  that  under  existing  regulations 
the  procedure  then  permitted  would  not  be  allowable.  In  re  Bradford, 
36  L.  D.  61,  64.  The  department  has  even  gone  so  far  as  to  revoke 
the  appointment  of  a  deputy  who  became  the  owner  of  stock  in  a  cor- 
poration which  was  the  record  claimant  of  unpatented  mining  claims 
and  who  actively  promoted  the  sale  of  town  lots  into  which  the  placer 
claims  were  subdivided.  The  department  held  that  he  occupied  a  posi- 
tion inconsistent  with  his  duties  and  with  the  spirit  of  the  mining 
regulations,  even  though  he  did  not  himself  survey  the  claims  for  patent. 
In  re  Saunders,  40  L.  D.  217. 

31  Lavagnino  v.  Uhlig,  26  Utah,  1,  98  Am.  St.  Eep.  808,  71  Pac. 
1046,  1048,  22  Morr.  Min.  Rep.  610,  and  Waskey  v.  Hammer,  170  Fed. 
31,  35,  95  C.  C.  A.  305  (affirmed  223  U.  S.  85,  32  Sup.  Ct.  Rep.  187, 
56  L.  ed.  359),  both  held  that  such  locations  were  void.  Hand  v. 
Cook,  29  Nev.  518,  92  Pac.  3,  4,  held  by  a  divided  court  that  a  deputj 


1651  THE  SURVEYORS-GENERAL.  §  661 

This  question  has  recently  been  finally  determined, 
however,  by  the  United  States  supreme  court  in  the 
case  of  Waskey  v.  Hammer." 

The  facts  of  this  case  showed  that  one  Whittren 
located  a  placer  claim  of  excessive  area.  Upon  as- 
certaining the  fact,  he  drew  in  two  of  the  boundary 
lines  sufficiently  to  exclude  the  excess,  and  in  do- 
ing so  left  his  only  discovery  point  outside  of  the 
readjusted  lines,  though  he  later  made  a  new  discovery 
of  placer  gold  within  the  lines  as  readjusted.  Subse- 
quent to  the  date  of  the  original  location,  and  prior  to 
the  readjustment  of  area  and  date  of  the  new  dis- 
covery, he  became  a  United  States  deputy  mineral  sur- 
veyor. The  court  held  that  he  came  within  the  pro- 
hibition of  section  452,  Revised  Statutes,  and  was  at 
the  date  of  his  new  discovery  disqualified  to  make  a 
location  by  reason  of  his  having  become  a  United 
States  mineral  surveyor ;  that  there  was  in  the  section 
no  language  confining  the  penalty  to  dismissal;  and 
that  the  readjusted  location  was  void.^^ 

The  authority  for  making  a  mineral  survey  is  a 
special  order  issued  by  the  surveyor-general  upon  the 
application  of  the  claimant,  who  is  permitted  to  select 
the  deputy.  In  making  the  survey  the  deputy  is  gov- 
erned by  the  *' Manual  of  Instructions,"  emanating 
from  the  general  land  office. 

mineral  surveyor  was  not  disqualified  to  make  locations.  See  concurring 
opinion  of  Talbot,  J.,  in  Gibson  v.  Hjul,  32  Nev.  360,  108  Pac.  759,  763. 

32  223  U.  S.  85,  32  Sup.  Ct.  Rep.  187,  56  L.  ed.  359. 

83  In  the  case  of  Prosser  v.  Finn,  208  U.  S.  67,  73,  28  Sup.  Ct.  Rep. 
225,  52  L.  ed.  392,  the  court  held  that  a  special  agent  of  the  general 
land  office  was  an  employee  within  the  meaning  of  section  452,  Revised 
Statutes  (Comp.  Stats.  1901,  p.  257;  6  Fed.  Stats.  Ann.  452),  and 
subject  to  its  prohibition,  and  that  the  government,  by  its  proper  officers 
or  department,  could  cancel  any  entry  made  by  him  and  treat  the  lands 
as  public  lands  which  could  be  patented  to  others. 


§  662  THE  LAND  DEPARTMENT  AND  ITS  FUNCTIONS.  1652 

§  662.  Commissioner  of  the  general  land  office — 
Appointment,  powers,  and  duties. — The  head  of  the 
land  office  is  the  commissioner  of  the  general  land  of- 
fice, who  is  appointed  by  the  president,  by  and  with 
the  advice  and  consent  of  the  senate.  His  duty  is  to 
perform,  nnder  the  direction  of  the  secretary  of  the 
interior,  all  executive  acts  appertaining  to  the  survey- 
ing and  sale  of  the  public  lands,  and  also  such  as  relate 
to  private  claims  for  lands  and  the  issuing  of  patents 
for  all  grants  of  land  under  authority  of  the  govern- 
ment.^* 

He  is  clothed  with  liberal  powers  of  control,  to  be 
exercised  for  the  purposes  of  justice  and  to  prevent  the 
consequences  of  inadvertence,  irregularity,  mistake  or 
fraud  in  the  important  and  extensive  operations  of  that 
office  for  the  disposal  of  the  public  domain.^* 

This  general  power  of  superintendence  gives  the 
commissioner  of  the  general  land  office  direct  super- 
vision over  registers  and  receivers,  whose  decisions  on 
all  questions  he  is  authorized  to  review.^^ 

Under  the  direction  of  the  secretary  of  the  interior, 
the  commissioner  is  authorized  to  enforce  and  carry 
into  execution,  by  appropriate  regulations,  every  part 
of  the  provisions  of  the  federal  laws  regulating  the 
sale  and  disposal  of  the  public  lands  not  otherwise  spe- 
cially provided  for." 

34  Rev.  Stats.,  §§446,  453;  Comp.  Stats.  1901,  pp.  255,  257;  6  Fed. 
Stats.  Ann.  210,  212;  Cahn  v.  Barnes,  5  Fed.  326,  331;  Weaver  v. 
Fairchild,  50  Cal.  360,  362;  Knight  v.  U.  S.  Land  Assn.,  142  U.  S.  161, 
177,  12  Sup.  Ct.  Rep.  258,  35  L.  ed.  974. 

35  Bell  V.  Hearne,  19  How.  252,  262,  15  L.  ed.  614. 

86  Barnard  v.  Ashley,  18  How.  43,  45,  15  L.  ed.  285;  Swigert  v. 
Walker,  49  Kan.  100,  30  Pac.  162,  163;  Hosmer  v.  Wallace,  47  Cal. 
461,  469;  Orchard  v.  Alexander,  157  U.  S.  372,  377,  15  Sup.  Ct.  Eep. 
635,  39  L.  ed.  737;  Lusk  v.  Mercantile  R.  E.  &  L.  S.  Co.,  7  Kan.  App. 
581,  52  Pac.  455,  456;  post,  §  772. 

87  Rev.  Stats.,  §   2478;   Knight  v.  U.  S.  Land  Assn.,  142  U.  S.  161, 


1653  SECRETARY  OF  THE  INTERIOR.  §  663 

These  regulations,  when  not  repugnant  to  the  acts  of 
congress,  have  the  force  and  effect  of  laws,'*  and  courts 
take  judicial  notice  of  them/' 

The  commissioner  of  the  general  land  office  has 
authority  to  cancel  an  entry  illegally  allowed.  The 
exercise  of  this  power  is  necessary  to  the  due  adminis- 
tration of  the  functions  of  the  land  department.  If  an 
investigation  of  the  validity  of  such  entries  were  re- 
quired in  the  courts  of  law  before  they  could  be  can- 
celed, the  necessary  delays  attending  the  examination 
would  greatly  impair,  if  not  destroy,  the  efficiency  of 
the  department.''" 

But  such  authority  can  only  be  exercised  upon  notice 
to  the  entryman." 

§  663.  Secretary  of  the  interior. — The  secretary  is 
the  guardian  over  the  public  lands  for  the  people  of 

178,  12  Sup.  Ct.  Rep.  258,  35  L.  ed.  974;  Warner  Valley  Stock  Co.  v. 
Smith,  165  U.  S.  28,  33,  34,  17  Sup.  Ct.  Eep.  225,  41  L.  ed.  621. 

38  Poppe  V.  Athearn,  42  Cal.  606,  619;  Chapman  v.  Quinn,  56  Cal. 
266,  273;  United  States  v.  Eliason,  16  Pet.  291,  302,  10  L.  ed.  9G8 ; 
Boske  V.  Comingore,  177  U.  S.  459,  468,  20  Sup.  Ct.  Rep.  701,  44  L.  ed. 
846;  Dastervignes  v.  United  States,  122  Fed.  30,  33,  58  C.  C.  A.  346; 
Shannon  v.  United  States,  160  Fed.  870,  874;  In  re  Yard,  38  L.  D. 
59,  62. 

39  Caha  V.  United  States,  152  U.  S.  211,  221,  14  Sup.  Ct.  Rep.  513, 
38  L.  ed.  415;  Whitney  v.  Spratt,  25  Wash.  62,  87  Am.  St.  Rep.  738,  64 
Pac.  919,  920;  Cosmos  Exploration  Co.  v.  Gray  Eagle  Oil  Co.,  190  U.  S. 
301,  309,  23  Sup.  Ct.  Rep.  692,  24  Sup.  Ct.  Rep.  860,  47  L.  ed.  1064. 

♦0  Cornelius  v.  Kessel,  128  U.  S.  456,  461,  9  Sup.  Ct.  Rep.  122,  32 
L.  ed.  482;  Barnard's  Heirs  v.  Ashley's  Heirs,  18  How.  43,  45,  15  L.  ed. 
285;  Bell  v.  Hearne,  19  How.  252,  262,  15  L.  ed.  614;  Harkness  v. 
Underhill,  1  Black,  316,  325,  17  L.  ed.  208;  Marquez  v.  Frisbie,  101 
U.  S.  473,  476,  25  L.  ed.  800;  United  States  v.  Schurz,  102  U.  S.  378, 
383,  26  L.  ed.  167;  Steel  v.  St.  Louis  Smelting  Co.,  106  U.  S.  447,  450, 
1  Sup.  Ct.  Rep.  389,  27  L.  ed.  226;  Hawley  v.  Diller,  178  U.  S.  476, 
477,  20  Sup.  Ct.  Rep.  986,  44  L.  ed.  1157;  Mineral  Farm  Min.  Co.  v. 
Barrick,  33  Colo.  410,  80  Pac.  1055,  1056. 

41  Risdon  v.  Davenport,  4  S.  D.  555,  57  N.  W.  482,  483. 


§  663  THE  LAND  DEPARTMENT  AND  ITS  FUNCTIONS.  1654 

the  United  States,  and  is  charged  with  the  supervision 
of  public  business  relating  to  the  public  lands,  includ- 
ing mines."  The  obligations  of  his  oath  of  office 
oblige  him  to  see  that  the  law  is  carried  out,  and  that 
none  of  the  public  domain  is  wasted  or  is  disposed  of 
to  a  party  not  entitled  to  it.  He  represents  the  gov- 
ernment, which  is  a  party  in  interest  in  every  case  in- 
volving the  surveying  and  disposal  of  the  public 
lands. *^ 

He  exercises  a  supervisory  control  over  the  deci- 
sions, rulings  and  acts  of  the  commissioner.** 

He  has  supervisory  powers  over  all  officers  below 
him,  and  is  the  final  arbiter  of  all  questions  of  fact.*^ 

He  may  exercise  this  power  not  only  on  formal  no- 
tice or  appeal,  according  to  the  rules  of  the  depart- 
ment, but  on  his  own  motion,  and  his  action  in  such  a 
matter  is  unassailable  in  the  courts  in  a  collateral  pro- 
ceeding.** 

He  may  not,  however,  annul  a  decision  of  his  pred- 
ecessor which  determines  the  rights  of  the  parties  to 
a  contest  for  entry  of  public  lands,  such  determination 

42  Warner  Valley  Stock  Co,  v.  Smith,  165  U.  S.  28,  34,  17  Sup.  Ct. 
Eep.  225,  41  L.  ed.  621;  In  re  Yard,  38  L.  D.  59,  61. 

43  Knight  V.  United  States  Land  Assn.,  142  U.  S.  161,  177,  12  Sup. 
Ct.  Rep.  258,  35  L.  ed.  974;  Riverside  Oil  Co.  v.  Hitchcock,  190  U.  S. 
316,  324,  23  Sup.  Ct.  Rep.  698,  47  L.  ed.  1074;  United  States  ex  rel. 
Ness  V.  Fisher,  223  U.  S.  683,  688,  32  Sup.  Ct.  Rep.  356,  56  L.  ed.  610; 
O'Connor  v.  Gertgens,  85  Minn.  481,  89  N.  W.  866,  872. 

<*  Hays  V.  Steiger,  76  Cal.  555,  560,  18  Pac.  670;  Magwire  v.  Tyler, 
1  Black,  195,  202,  17  L.  ed.  137;  Snyder  v.  Sickles,  98  U.  S.  203,  210, 
25  L.  ed.  97;  Buena  Vista  County  v.  Iowa  Falls  &  S.  C.  R.  R.,  112 
U.  S.  165,  175,  5  Sup.  Ct.  Rep.  84,  28  L.  ed.  680;  Lee  v.  Johnson,  116 
U.  S.  48,  51,  6  Sup.  Ct.  Rep.  249,  29  L.  ed.  570. 

«  Lawrence  v.  Potter,  22  Wash.  32,  60  Pac.  147,  149. 

46  Knight  V.  United  States  Land  Assn.,  142  U.  S.  161,  177,  12  Sup. 
Ct.  Rep.  258,  35  L.  ed.  974;  Hestres  v.  Brennan,  50  Cal.  211,  217;  Reed 
T.  Bowron,  32  L.  D.  383. 


1655  JURISDICTION    OF   THE  LAND   DEPARTMENT.  §  664 

being  a  judicial  act  which  can  only  be  reviewed  by  the 
courts.*^ 

§  664.  Jurisdiction  of  the  land  department. — We 
have  no  immediate  concern  with  the  powers  and  func- 
tions of  the  land  department  in  its  dealings  with  any 
class  of  the  public  lands  other  than  those  falling  within 
the  purview  of  the  mining  laws.  Yet,  in  administering 
these  laws,  all  departments  of  the  public  land  system 
are  more  or  less  blended.  Conflicts  are  constantly 
arising  between  claimants  asserting  rights  under  dif- 
ferent branches  of  the  system,  requiring  a  considera- 
tion of  different  elements  and  of  different  laws  in  a 
cognate  series.  In  administering  these  laws  certain 
powers  are  confided  to  the  department,  in  the  exercise 
of  which  that  tribunal  is  guided  and  governed  by  well- 
defined  rules  and  established  principles,  applicable 
alike  to  their  dealings  with  all  classes  of  public  lands. 

The  interior  department  is  specifically  authorized 
and  empowered  to  enforce  and  execute  the  public  land 
laws  of  the  United  States.**  The  land  department  is 
a  qua  si- judicisil  tribunal,  and  has  exclusive  jurisdiction 
over  the  disposition  of  lands  of  the  public  domain  in 
the  absence  of  specific  legislation  to  the  contrary. 
Pending  final  action  of  the  department  with  respect 
to  title  to  public  lands,  generally  the  state  or  federal 
courts  will  not  interfere,  nor  entertain  actions  relating 
thereto." 

4T  Emblen  v.  Lincoln  Land  Co.,  94  Fed.  710,  714;  S.  C,  on  appeal, 
102  Fed.  559,  42  C.  C.  A.  499,  citing  Noble  v.  Railway  Co.,  147  U.  S. 
165,  171,  13  Sup.  Ct.  Rep.  271,  37  L.  ed.  123,  and  United  States  v. 
Stone,  2  Wall.  525,  17  L.  ed.  765.  But  see  Gage  v.  Gunther,  136  Cal. 
338,  68  Pac.  710;  Harkrader  v.  Goldstein,  31  L.  D.  87. 

48  Rev.  Stats.,  §§  441,  453,  2478. 

49  Low  y.  Katalla  Co.,  40  L.  D.  534,  and  cases  cited. 


§  664  THE  LAND  DEPAETMENT  AND  ITS  FUNCTIONS.  1656 

In  outlining  in  the  previous  sections  the  powers  and 
duties  of  the  several  officers  constituting  in  the  aggre- 
gate the  land  department,  we  have  necessarily  pre- 
sented to  some  extent  the  scope  of  the  jurisdiction  of 
that  tribunal/" 

The  limit  of  its  authority  is  found  in  the  acts  of  con- 
gress. It  cannot  grant  land.^^  It  cannot  direct  or  per- 
mit entries  to  be  made  or  purchases  to  be  consummated 
except  in  cases  authorized  by  some  federal  law.®^  It 
cannot  take  away  the  property  of  one  and  give  it  to 
another.  Its  jurisdiction  is  suspended  where  lands 
theretofore  public  have,  by  virtue  of  congressional 
legislation  or  lawful  executive  order,  been  withdrawn 
from  the  operation  of  the  public  land  laws.  Its  juris- 
diction terminates  and  its  authority  ceases  when  the 
land  passes  into  private  ownership  and  the  title  of  the 
government  is  transmitted  through  the  forms  of  law.^^^ 
The  test  of  jurisdiction  is  not  "right  decision,"  but  the 
right  to  enter  upon  the  inquiry  and  make  some  de- 
cision— i.  e.,  had  the  department  the  power  to  hear  and 
determine  the  claims  of  the  applicants  of  the  land  and 
to  dispose  of  it  in  accordance  with  its  decision!  ^^ 

50  jf'or  general  statement  as  to  functions  of  the  land  department,  see 
Germania  Iron  Co.  v.  James,  89  Fed.  811,  32  C.  C.  A.  348;  James  v. 
Germania  Iron  Co.,  107  Fed.  597,  46  C.  C.  A.  476;  note  to  Hartman 
V.  Warren,  76  Fed,  157,  22  C.  C.  A.  30;  Gage  v.  Gunther,  136  Cal.  338, 
68  Pac.  710,  712. 

51  Shanklin  v.  McNamara,  87  Cal.  371,  26  Pac.  345,  347. 
62  Parker  v.  Duff,  47  Cal.  554. 

62a  C.  Henry  Bunte,  41  L.  D.  520. 

53  King  V.  McAndrews,  111  Fed.  860,  863,  50  C.  C.  A.  29;  New 
Dunderberg  v.  Old,  79  Fed.  598,  602,  25  C.  C.  A.  116;  Bradley  v.  Dells 
Lumbei  Co.,  105  Wis.  245,  81  N.  W.  394,  396;  post,  §  772.  The  prin- 
ciple announced  is  recognized  in  Old  Dominion  Copper  M.  Co.  v.  Hav- 
erly,  11  Ariz.  241,  90  Pac.  333,  335,  but  note  the  labored  attempt  to 
distinguish  the  prior  case  of  Kansas  City  M.  &  M.  Co.  v.  Clay,  3  Ariz. 
326,    29    Pac.    9.     "Jurisdiction    is    authority    to    hear   and    determine." 


1657  JURISDICTION   OF   THE  LAND   DEPARTMENT.  §  664 

With  the  exercise  of  its  discretionary  powers  the 
courts  cannot  interfere,^^  and  within  certain  recognized 
limits  its  judgments  are  final.  Of  course  it  is  well 
recognized  that  the  ministerial  duty  of  these  officers 
may  be  so  clear  that  its  performance  may  be  forced 
by  mandamus .^'^ 

The  supreme  court  of  the  United  States  "  has  used 
the  following  language  with  reference  to  the  power  of 
the  land  department  to  initiate  a  proceeding  and  itself 
determine  the  validity  or  invalidity  of  a  location  inde- 
pendently of  an  application  for  patent: — 

Undoubtedly  when  the  department  rejected  the  ap- 
plication for  a  patent  it  could  have  gone  further  and 

McNitt  V.  Turner,  16  Wall.  352,  366,  21  L.  ed.  341;  Copley  v.  Ball,  176 
Fed.  682,  691,  100  C.  C.  A.  234. 

54  Michigan  L.  &  L.  Co.  v.  Rust,  168  U.  S.  589,  593,  18  Sup.  Ct.  Rep. 
208,  42  L.  ed.  591;  Brown  v.  Hitchcock,  173  U.  S.  473,  477,  19  Sup.  Ct. 
Rep.  485,  43  L.  ed.  772;  Emblen  v.  Lincoln  Land  Co.,  184  U.  S.  660, 
663,  22  Sup.  Ct.  Rep.  523,  46  L.  ed.  736;  In  re  Emblen,  161  U.  S.  52, 
56,  16  Sup.  Ct.  Rep.  487,  40  L.  ed.  613;  note  to  Hartman  v.  Warren, 
76  Fed.  157,  22  C.  C.  A.  30;  Cosmos  Exploration  Co.  v.  Gray  Eagle 
Oil  Co.,  190  U.  S.  301,  23  Sup.  Ct.  Rep.  692,  24  Sup.  Ct.  Rep.  860,  47 
L.  ed.  1064;  Riverside  Oil  Co.  v.  Hitchcock,  190  U.  S.  316,  325,  23 
Sup.  Ct.  Rep.  698,  47  L.  ed.  1074;  Bockfinger  v.  Foster,  190  U.  S. 
116,  126,  23  Sup.  Ct.  Rep.  836,  47  L.  ed.  975;  Bates  &  Guild  Co.  v. 
Payne,  194  U.  S.  106,  109,  24  Sup.  Ct.  Rep.  595,  48  L.  ed.  894;  Hum- 
bird  V.  Avery,  195  U.  S.  480,  505,  25  Sup.  Ct.  Rep.  123,  49  L.  ed.  286; 
Oregon  v.  Hitchcock,  202  U.  S.  60,  70,  26  Sup.  Ct.  Rep.  568,  50  L.  ed. 
935;  United  States  ex  rel.  Ness  v.  Fisher,  223  U.  S.  683,  692,  32  Sup. 
Ct.  Rep.  356,  56  L.  ed.  610;  Kendall  v.  Long,  66  Wash.  62,  119  Pac.  9,  11. 

55  Ballinger  v.  United  States,  216  U.  S.  240,  249,  30  Sup.  Ct.  Rep. 
338,  54  L.  ed.  464;  citing  Roberts  v.  United  States,  176  U.  S.  221, 
230,  20  Sup.  Ct.  Rep.  376,  44  L.  ed.  443 ;  Noble  v.  Union  River  Logging 
Co.,  147  U.  S.  165,  171,  13  Sup.  Ct.  Rep.  271,  37  L.  ed.  123;  Barney  v. 
Dolph,  97  U.  S.  652,  656,  24  L.  ed.  1063;  Simmons  v.  Wagner,  101 
U.  S.  260,  261,  25  L.  ed.  910;  United  States  v.  Sehurz,  102  U.  S.  378, 
383,  26  L.  ed.  167;  Fisher  v.  United  States  ex  rel.  Grand  Rapids  Timber 
Co.,  37  App.  Cas.  D.  C.  436  (Court  of  Appeals,  Dist.  of  Columbia). 

»«  Clipper  Min.  Co.  v.  Eli  Min.  Co.,  194  U.  S.  220,  223,  24  Sup. 
Ct.  Rep.  632,  48  L.  ed.  944. 


§  664  THE  LAND  DEPARTMENT  AND  ITS  FUNCTIONS.  1658 

set  aside  the  placer  location,  and  it  can  now,  by 
direct  proceedings  upon  notice,  set  it  aside  and  re- 
store the  land  to  the  public  domain.  But  it  has  not 
done  so,  and  therefore  it  is  useless  to  consider  what 
rights  other  parties  might  then  have. 

This  dictum  states  the  proposition  rather  more 
broadly  than  the  accepted  measure  of  the  department's 
jurisdiction  in  such  matters  was  formerly  generally 
conceded  to  be,  viz. :  that  questions  affecting  the  right 
of  possession  of  mining  locations  are  committed  ex- 
clusively to  determination  by  the  courts,  especially  in 
the  absence  of  applications  for  patent.®'^  Of  course,  as 
far  as  issuance  of  patent  is  concerned,  there  can  be  no 
question  but  that  the  department  has  power  to,  and  it 
is  its  duty  to  independently  investigate  and  determine 
for  such  purpose  for  itself  the  validity  of  the  location, 
and  in  this  respect  the  question  is  not  one  within  the  , 
exclusive  jurisdiction  of  the  courts. ^^  Controversies 
committed  to  the  courts  for  determination  are  those 
between  adverse  claimants  to  possession  under  conflict- 
ing locations  of  the  same  land,  and  those  only.^®  That 
the  department  can,  independently  of  a  patent  appli- 
cation, by  direct  proceedings  declare  a  location  invalid, 
set  it  aside,  and  restore  the  land  to  the  public  domain 
is  a  rather  recent  enlargement  of  its  powers  as  they 
have  generally  been  accepted  in  the  past. 

That  this  view  as  to  its  jurisdictional  powers  in  such 
matters  is  also  entertained  by  the  land  department  is 
forcibly  set  forth  in  the  so-called  ''Yard  Decision,"  ®° 

57  Gen.  Min.  Eeg.,  par.  55,  Appendix;   Nome  &  Sinook  Co.  v.  Town- 
site  of  Nome   (on  review),  34  L.  D.  276. 

58  Clipper  Min.  Co.  v.  Eli  Min.  Co.,  33  L.  D.  660,  669;   Bunker  Hill 
:etc.  Co.  V.  Shoshone  Min.  Co.,  33  L.  D.  142,  149. 

59  Id. 

60  In  re  Yard,  38  L.  D.  59,  61-68. 


1659  JURISDICTION   OF   THE  LAND   DEPARTMENT,  §  664 

where  this  question  of  jurisdiction  was  elaborately  dis- 
cussed. A  brief  history  of  the  facts  surrounding  this 
case  will  illuminate  the  conclusions  reached  by  the  de- 
partment. H.  H.  Yard  and  associates  had  made  sev- 
eral hundred  association  placer  locations  which  cov- 
ered several  thousand  acres  of  land,  much  of  it  lying 
in  the  Plumas  National  Forest,  California.  They  em- 
braced considerable  tracts  of  valuable  timber,  and  at 
the  instigation  of  forest  officers  and  private  citizens 
who  complained  of  this  wholesale  attempt  to  control 
this  vast  acreage  of  public  domain  the  department  of 
the  interior  directed  the  local  officers  to  order  a  hear- 
ing and  issue  notice  to  Yard  et  al.,  charging  that  the 
land  covered  by  these  "paper  locations"  was  non- 
mineral  and  that  the  locations  were  defective  for  want 
of  valid  discoveries  and  were  not  made  in  good  faith. 
Yard  resisted  this  proceeding  on  the  ground  that  since 
he  had  made  no  application  for  patent,  the  land  de- 
partment was  without  jurisdiction  to  determine  these 
questions.  After  an  elaborate  discussion  of  the  au- 
thorities, the  department  held  that  inasmuch  as  a  valid 
location  resulted  in  a  virtual  disposal  of  those  public 
lands  embraced  therein,  and  since  it  was  charged  with 
the  duty  of  administering  the  public  land  and  with  the 
disposing  of  lands  therein  to  qualified  applicants,  it 
was  incumbent  upon  the  department  to  see  that  the 
public  lands  are  not  withheld  from  use  by  the  govern- 
ment or  from  acquisition  by  proper  applicants,  and  it 
had  full  jurisdiction  to  investigate  all  questions  affect- 
ing the  validity  of  any  alleged  or  colorable  locations 
on  the  public  domain  at  any  time,  even  prior  to  appli- 
cation for  patent,  and  had  power  to  initiate  proceed- 
ings to  determine  the  status  of  such  locations  in  order 
that  appropriate  action  might  be  taken  which  would 


§  664  THE  LAND  DEPARTMENT  AND  ITS  FUNCTIONS.  1660 

secure  compliance  with  and  enforcement  of  tlie  federal 
laws  and  regulations.  The  reasoning  was  largely 
based  on  the  peculiar  function  of  the  government  in 
the  administration  and  control  of  its  forest  reserves 
wherein  it  occupied  a  position  very  similar  to  that  of 
an  individual  claimant  to  the  open  public  domain  under 
any  of  the  nonmineral  land  laws."  The  reasoning  is 
broad  enough,  however,  to  include  the  power  of  inves- 
tigation of  the  validity  of  locations  situated  on  the 
open  public  domain  not  embraced  within  forest  re- 
serves. 

There  is  some  question  as  to  the  effect  of  such  pro- 
ceedings. While  they  materially  aided  in  ^ '  clearing  up 
the  atmosphere"  in  the  Yard  situation,  there  is  noth- 
ing to  prevent  the  location  claimant  from  immediately 
proceeding  to  make  a  new  location  covering  the  same 
tract  of  ground  and  the  department  would  frequently 
gain  little  as  a  result  of  its  inquiry.  The  Yard  deci- 
sion admitted  that  the  department  did  not  have  judi- 
cial authority  to  remove  locators  from  their  invalid 
claims,  but  had  the  power  to  declare  them  void  and 
refuse  to  recognize  them  as  the  basis  for  patent  pro- 
ceedings.®^* With  these  preliminary  observations,  we 
will  proceed  to  consider  the  effect  of  departmental  de- 
cisions upon  questions  of  fact  and  law,  and  upon  mixed 
questions  of  law  and  fact. 

61  See  United  States  v.  Rizzinelli,  182  Fed.  675,  which  holds  that 
subject  to  the  locator's  legitimate  use  for  mining  purposes,  the  govern- 
ment continues  to  be  owner  of  the  land,  and  is  interested  in  conserving 
its  value  and  preventing  injury  and  waste. 

6ia  Since  the  foregoing  was  in  type  our  attention  has  been  called  to 
a  recent  decision  by  the  secretary  (In  re  Nichols  &  Smith,  Oct.  24,  1913, 
unpublished),  which  overrules  the  doctrine  of  the  Yard  case  as  being 
"entirely  indefensible,  whether  viewed  from  an  administrative  or  legal 
standpoint.'* 


1661  EFFECT   OF    DECISIONS   ON   QUESTIONS   OF   FACT.      §  665 

§  665.  The  effect  of  the  decisions  of  the  land  de- 
partment upon  questions  of  fact. — There  is  one  propo- 
sition of  law  involved  in  the  administration  of  the  pub- 
lic land  system  upon  which  all  courts  agree:  The 
decisions  of  the  land  department  upon  questions  of  fact, 
in  a  proceeding  within  the  scope  of  its  jurisdiction,  are, 
in  the  absence  of  fraud  or  imposition,  conclusive." 

As  was  said  by  the  supreme  court  of  the  United 
States : — 

62  Wilcox  V.  Jackson,  13  Pet.  496,  511,  10  L.  ed.  270;  Johnson  v. 
Townsley,  13  Wall.  72,  83,  20  L.  ed.  485;  Shepley  v.  Cowan,  91  U.  S. 
330,  340,  23  L.  ed.  424;  Moore  v.  Robbins,  96  U.  S.  530,  535,  24  L. 
ed.  848;  Quinby  v.  Conlan,  104  U.  S.  420,  425,  26  L.  ed.  800;  St.  Louia 
Smelting  Co.  v.  Kemp,  104  U.  S.  636,  641,  26  L.  ed.  875,  11  Morr. 
Min.  Rep.  673;  Lee  v.  Johnson,  116  U.  S.  48,  51,  6  Sup.  Ct.  Rep.  249, 
29  L.  ed.  570;  Carr  v.  Fife,  156  U.  S.  494,  501,  15  Sup.  Ct.  Rep.  427, 
39  L.  ed.  508;  Catholic  Bishop  of  Nesqually  v.  Gibbon,  158  U.  S.  155, 
166,  15  Sup.  Ct.  Rep.  779,  39  L.  ed.  931;  Stewart  v.  McHarry,  159 
U.  S.  643,  650,  16  Sup.  Ct.  Rep.  117,  40  L.  ed.  290;  Diller  v.  Hawley, 
81  Fed.  651,  656,  26  C.  C.  A.  514;  Cooke  v.  Blakely,  6  Kan.  App.  707, 
50  Pac.  981,  983;  Harrington  v.  Wilson,  10  S.  D.  606,  74  N.  W.  1055, 
1056;  Wiseman  v.  Eastman,  21  Wash.  163,  57  Pac.  398,  400;  Wormouth 
V.  Gardner,  125  Cal.  316,  58  Pac.  20,  21;  Acers  v.  Snyder,  8  Okl.  659, 
58  Pac.  780,  781;  Lawrence  v.  Potter,  22  Wash.  32,  60  Pac.  147,  148; 
James  v.  Germania  Iron  Co.,  107  Fed.  597,  600,  46  C.  C.  A.  476;  King 
V.  McAndrews,  111  Fed.  860,  863,  50  C.  C.  A.  29;  Moss  v.  Dowman, 
176  U.  S.  413,  415,  20  Sup.  Ct.  Rep.  429,  44  L.  ed.  526;  Cook  v. 
McCord,  9  Okl.  200,  60  Pac.  497,  500;  Gardner  v.  Bonestell,  180  U.  S. 
362,  369,  21  Sup.  Ct.  Rep.  399,  45  L.  ed.  574;  Gray's  Harbor  Co.  v. 
Drumm,  23  Wash.  706,  63  Pac.  530,  531;  O'Connor  v.  Gertgens,  85 
Minn.  481,  89  N.  W.  866,  872;  Manley  v.  Tow,  110  Fed.  241,  245; 
Thompson  v.  Basler,  148  Cal.  646,  113  Am.  St.  Rep.  321,  84  Pac.  161, 
162;  Cragie  v.  Roberts,  6  Cal.  App.  309,  92  Pac.  97,  99;  Whitcomb  v. 
White,  214  U.  S.  15,  16,  29  Sup.  Ct.  Rep.  599,  53  L.  ed.  889;  De  Cambra 
V.  Rogers,  189  U.  S.  119,  122,  23  Sup.  Ct.  R*p.  519,  47  L.  ed.  734; 
Bates  &  Guild  Co.  v.  Payne,  194  U.  S.  106,  108.  24  Sup.  Ct.  Rep.  595, 
48  L.  ed.  894;  Le  Marchal  v.  Tegardin,  175  Fed.  682,  685,  99  C.  C.  A. 
236;  Emmons  v.  United  States  (C.  C.  Or.),  175  Fed.  514,  515.  See, 
also.  Old  Dominion  Copper  Co.  v.  Haverly,  11  Ariz.  241.  90  Pac.  333, 
335,  spe<!iously  differentiating  the  earlier  case  of  Kansas  City  M.  &  M. 
Co.  V.  Clay,  3  Ariz.  326,  29  Pac.  9,  10. 


§  665  THE  LAND  DEPAKTMENT  AND  ITS  FUNCTIONS,  1662 

It  is  the  established  doctrine,  expressed  in  nnmer- 
ous  decisions  of  this  court,  that  whenever  congress 
has  provided  for  the  disposition  of  any  portion  of  the 
public  lands  of  a  particular  character,  and  author- 
ized the  officers  of  the  land  department  to  issue  a 
patent  for  such  land  upon  ascertainment  of  certain 
facts,  that  department  has  jurisdiction  to  inquire 
into  and  to  determine  as  to  the  existence  of  such 
facts,  and  in  the  absence  of  fraud,  imposition,  or  mis- 
take, its  determination  is  conclusive  against  collat- 
eral attack.®* 

It  is  useless  to  multiply  authorities  in  support  of  a 
doctrine  so  well  established. 

A  possible  modification  of  the  rule  seems  to  be  recog- 
nized by  the  supreme  court  of  the  United  States. 

Where  each  party  has  a  patent  from  the  govern- 
ment, and  the  question  is  as  to  the  superiority  of  the 
title  under  those  patents,  if  this  depends  upon  ex- 
trinsic facts  not  shown  by  the  patents  themselves,  we 
think  it  is  competent,  in  any  judicial  proceeding 
where  this  question  of  superiority  of  title  arises,  to 
establish  it  by  proof  of  those  facts.®* 

We  shall  have  occasion  to  recur  to  this  subject  when 
dealing  with  the  force  and  effect  of  a  patent. 

The  land  department  itself  is  not  bound  by  its  own 
adjudication  that  land  is  of  a  certain  character,  pro- 
vided title  has  not  passed  from  the  government  by 
issuance  of  patent,  and  it  may  subsequently  again 
consider  and  determine  the  character  of  land  claimed 
under  the  mineral  laws.®** 

63  Barden  v.  Northern  Pacific  E.  K.,  154  U.  S.  288,  327,  14  Sup.  Ct. 
Rep.   1030,  38  L.  ed.  992. 

6*  Iron  S.  M.  Co.  v.  Campbell,  135  U.  S.  286,  292,  10  Sup.  Ct.  Eep. 
765,  34  L.  ed.  155,  16  Morr.  Min.  Rep.  218. 

6*a  C.  Henry  Bunte,  41  L.  D.  520. 


1663  DECISIONS   ON    MIXED    QUESTIONS.  §  666 

§  666.  Decisions  of  the  land  department  upon  ques- 
tions of  law  and  mixed  questions  of  law  and  fact. — The 
construction  given  to  a  statute  by  those  charged  with 
the  duty  of  executing  it,  if  uniform  and  continuous,  is 
entitled  to  the  most  respectful  consideration,  and  ought 
not  to  be  overruled  without  cogent  reasons,®^  and  unless 
it  be  clear  that  it  is  erroneous. ®®  Such  construction  is 
in  the  highest  degree  persuasive,  if  not  absolutely  con- 
trolling in  its  effect.^^ 

This  principle  "is  so  firmly  imbedded  in  our  juris- 
prudence that  no  authorities  need  be  cited  to  support 
it.  On  the  faith  of  a  construction  thus  adopted,  rights 
of  property  grow  up  which  ought  not  to  be  ruthlessly 
swept  aside,  unless  some  great  pul)lic  measure,  benefit 
or  right  is  involved,  or  unless  the  construction  itself 
is  manifestly  incorrect."  ^^ 

65  United  States  v.  Moore,  95  U.  S.  760,  763,  24  L.  ed.  588;  Hastings 
&  Dakota  R.  R.  v.  Whitney,  132  U.  S.  357,  366,  10  Sup.  Ct.  Rep.  112, 
33  L.  ed.  363;  Brown  v.  United  States,  113  U.  S.  568,  571,  5  Sup.  Ct. 
Rep.  648,  28  L.  ed.  1079;  Montana  Ltd.  v.  Clark,  42  Fed.  626,  629, 
16  Morr.  Min.  Rep.  80;  Knowlton  v.  Moore,  178  U.  S.  41,  56,  92,  20 
Sup.  Ct.  Rep.  747,  44  L.  ed.  969;  United  States  v.  S.  P.  R.  R.,  184 
U.  S.  49,  56,  22  Sup.  Ct.  Rep.  285,  46  L.  ed.  425;  O'Connor  v.  Gertgens, 
85  Minn.  481,  89  N.  W.  866,  871;  Hawley  v.  Diller,  178  U.  S.  476, 
488,  20  Sup.  Ct.  Rep.  986,  44  L.  ed.  1157;  Hewitt  v.  Schultz,  180 
U.  S.  139,  157,  21  Sup.  Ct.  Rep.  309,  45  L.  ed.  463;  Fairbank  v.  United 
States,  181  U.  S.  283,  311,  21  Sup.  Ct.  Rep.  648,  45  L.  ed.  862;  Waterloo 
M.  Co.  V.  Doe,  82  Fed.  45,  50,  27  C.  C.  A.  50,  19  Morr.  Min.  Rep.  1; 
McFadden  v.  Mountain  View  M.  &  M.  Co.,  97  Fed.  670,  673,  38  C.  C. 
A.  354;  United  States  v.  Burkett,  150  Fed.  208,  211;  McMichael  v. 
Murphy,  197  U.  S.  304,  312,  25  Sup.  Ct.  R^-p.  460,  49  L.  ed.  766. 

66  United  States  v.  Johnston,  124  U.  S.  236,  253,  8  Sup.  Ct.  Rep. 
446,  31  L.  ed.  389. 

67  United  States  v.  Graham,  110  U.  S.  219,  221,  3  Sup.  Ct.  Rep.  582, 
28  L.  ed.  126;  Calhoun  G.  M.  Co.  v.  Ajax  M.  Co.,  27  Colo.  1,  83  Am. 
St.  Rep.  17,  59  Pac.  607,  611,  50  L.  R.  A.  209,  20  Morr.  Min.  Rep. 
192;   note  to  Hartman  v.  Warren,  76  Fed.  157,  22  C.  C.  A.  30. 

68  Pennoyer  v.  McConnaughy,  140  U.  S.  1,  23,  11  Sup.  Ct.  Rep.  699, 
35  L.  ed.  363. 


§  666  THE  LAND  DEPARTMENT  AND  ITS  FUNCTIONS.  1664 

The  rule,  however,  is  not  absolnte,^^  but  is  subject 
to  the  limitation  that  the  construction  must  have  been 
continuously  in  force  for  a  long  time,'"  and  applies  only 
in  cases  of  ambiguity  and  doubt." 

"With  language  clear  and  precise,  and  with  its  mean- 
ing evident,  there  is  no  room  for  construction,  and  con- 
sequently no  need  of  anything  to  give  it  aid."  No 
practice  inconsistent  with  that  meaning  can  have  any 
effect." 

The  existence  of  these  rules  suggests  that  the  courts 
are  not  bound  by  the  departmental  decisions  on  ques- 
tions of  law.  They  have  a  right  to  investigate  legal 
rulings  made  by  the  department — a  right  which,  in  the 
absence  of  fraud  or  imposition,  does  not  exist  where 
only  questions  of  fact  are  involved. 

Where  the  land  officers  have  clearly  mistaken  the  law 
of  the  case  as  applicable  to  the  facts,  courts  of  equity 

69  Houghton  V.  Payne,  194  U.  S.  88,  99,  24  Sup.  Ct.  Eep.  490,  48 
L.  ed.  888. 

70  Merritt  v.  Cameron,  137  U.  S.  542,  552,  11  Sup.  Ct.  Eep.  174,  34 
L.  ed.  772.  By  way  of  an  explanation  for  "changed  rulings,"  the  secre- 
tary of  the  interior  says:  "Yet  it  is  the  consequence  of  human  infirmity 
that  even  the  highest  and  wisest  tribunal  known  to  man  sometimes  finds 
its  interpretations  of  laws  not  well  reasoned  and  its  long  established 
rules  of  practice  not  such  as  most  certain  to  attain  justice,  the  ultimate 
object  of  all  law  and  all  rules  of  practice,  and  that  a  change  is  neces- 
sary in  furtherance  of  justice  and  to  suppress  fraud."  In  re  Lemmon, 
36  L.  D.  543. 

71  Swift  Co.  V.  United  States,  105  U.  S.  691,  695,  26  L.  ed.  1108; 
United  States  v.  Tanner,  147  U.  S.  661,  663,  13  Sup.  Ct.  Rep.  436,  37 
L.  ed.  321;  Merritt  v.  Cameron,  137  U.  S.  542,  552,  11  Sup.  Ct.  Eep. 
174,  34  L.  ed.  772;  McFadden  v.  Mt.  View  M.  &  M.  Co.,  87  Fed.  154, 
156. 

72  United  States  v.  Graham,  110  U.  S.  219,  221,  3  Sup.  Ct.  Rep.  582, 
28  L.  ed.  126;  Houghton  v.  Payne,  194  U.  S.  88,  99,  24  Sup.  Ct.  Rep. 
490,  48  L.  ed.  888. 

73  United  States  v.  Alger,  152  U.  S.  384,  397,  14  Sup.  Ct.  P^p.  635, 
88  L.  ed.  488. 


1665  DECISIONS   ON    MIXED    QUESTIONS.  §  666 

may  give  relief/*  Therefore,  the  construction  of  the 
law  by  the  department  as  applied  to  the  facts  found  by 
them  to  be  true  ^^  does  not  conclude  the  courts."*^ 

Where  the  land  officers,  upon  the  uncontradicted 
facts,  commit  an  error  of  law  by  which  the  land  has 
been  awarded  to  a  party  to  the  prejudice  of  the  right 
of  another,  the  latter  is  entitled  to  relief  at  the  hands 
of  the  courts." 

It  is  only  where  it  is  made  plain  that  the  officers  of 
the  land  department  have  by  a  mistake  of  law  deprived 
a  party  of  land  to  which  he  is  rightfully  entitled  that 
a  court  of  equity  is  justified  in  setting  aside  the  action 
of  the  department. ^^  The  nature  of  the  mistake  and 
the  manner  of  its  occurrence  must  be  pleaded  fully. ^* 

Where  the  charge  is,  that  the  land  department  has 
erred  in  the  decision  of  a  mixed  question  of  law  and 
fact,  what  the  facts  were  as  laid  before  and  found  by 

74  Baldwin  v.  Starks,  107  U.  S.  463,  465,  2  Sup.  Ct.  Rep.  473,  27 
L.  ed.  526;  Gage  v.  Gunther,  136  Cal.  338,  68  Pac.  710. 

75  Hays  V.  Steiger,  76  Cal.  555,  558,  18  Pac.  670. 

76  Wisconsin  Cent.  E.  R.  Co.  v.  Forsythe,  159  U.  S.  46,  61,  15  Sup. 
Ct.  Rep.  1020,  40  L.  ed.  71,  and  cases  cited;  Hawley  v.  Diller,  178  U.  S. 
476,  488,  20  Sup.  Ct.  Rep.  986,  44  L.  ed.  1157;  Manley  v.  Tow,  110 
Fed.  241,  248;  Hemmer  v.  United  States,  204  Fed.  898,  905. 

77  Moore  v.  Robbins,  96  U.  S.  530,  535,  24  L.  ed.  848;  James  v. 
Germania  Iron  Co.,  107  Fed.  597,  600,  46  C.  C.  A.  476;  Germania  Iron 
Co.  V.  James,  89  Fed.  811,  817,  32  C.  C.  A.  348;  Lee  v.  Johnson,  116 
U.  S.  48,  49,  6  Sup.  Ct.  Rep.  249,  29  L.  ed.  570;  Lawrence  v.  Potter, 
22  Wash.  32,  60  Pac.  147;  Gourley  v.  Countryman,  18  Okl.  220,  90  Pac. 
427,  428;  Le  Marchal  v.  Tegarden,  175  Fed.  682,  685,  99  C.  C.  A.  236; 
Kendall  v.  Long,  66  Wash.  62,  119  Pac.  9,  12. 

78  Moss  V.  Dowman,  176  U.  S.  413,  415,  20  Sup.  Ct.  Rep.  429,  44  L. 
ed.  526;  Id.,  88  Fed.  181,  183,  31  C.  C.  A.  447;  King  v.  McAndrews, 
111  Fed.  860,  863,  50  C.  C.  A.  29;  notes  to  Hartman  v.  Warren,  76 
Fed.  157,  22  C.  C.  A.  30,  and  Carson  City  G.  &  S.  M.  Co.  V.  North 
Star  M.  Co.,  83  Fed.  658,  28  C.  C.  A.  333,  19  Morr.  Min.  Rep.  118; 
Ramsey  v.  Tacoma  Land  Co.,  31  Wash.  351,  71  Pac.   1024,   1025. 

7»  United  States  v.  Northern  Pac.  Ry.,  95  Fed.  864,  870,  37  C.  C.  A. 
290. 

Lindley  on  M.— 105  C^.O 


§  666  THE  LAND  DEPARTMENT  AND  ITS  FUNCTIONS.  1666 

the  department  must  be  shown,  so  as  to  enable  the 
court  to  see  clearly  that  the  law  has  been  miscon- 
strued.*"* 

Where  there  is  a  mixed  question  of  law  and  fact  and 
the  court  cannot  so  separate  it  as  to  see  clearly  where 
the  mistake  of  law  is,  the  decision  of  the  tribunal  to 
which  the  law  has  confided  the  matter  is  conclusive." 
The  general  rule  is  thus  stated  by  the  supreme  court 
of  the  United  States : — 

When  the  decision  of  questions  of  fact  is  com- 
mitted to  the  judgment  and  discretion  of  the  head  of 
a  department,  his  decision  thereon  is  conclusive ;  and 
that  even  upon  mixed  questions  of  law  and  fact  or 
of  law  alone,  his  action  will  carry  with  it  the  strong 
presumption  of  its  correctness,  and  the  courts  will 
not  ordinarily  review  it,  although  they  may  have  the 
power  and  will  occasionally  exercise  the  right  of  so 
doing.*^ 

80  Durango  L.   &  C.  Co.  v.   Evans,  80   Fed.  425,  25   C.   C.   A.  523; 
Wiseman  v.  Eastman,  21  Wash.  163,  57  Pac.  398,  401. 

81  Marquez  v.  Frisbie,  101  U.  S.  473,  476,  25  L.  ed.  800;  Whiteomb 
V.  Wbite,  214  U.  S.  15,  17,  29  Sup.  Ct.  Rep.  599,  53  L.  ed.  889. 

82  Bates  &  Guild  Co.  v.  Payne,  194  U.  S.  106,  109,  24  Sup.  Ct.  Eep. 
595,  48  L.  ed.  894. 


CHAPTER    II. 

THE  SUEVEY  FOR  PATENT. 


§  670.     Application  for  survey. 

§  671.     The  survey  of  lode  claims. 

§  672.  The  survey  of  placer 
claims  —  Descriptive  re- 
port. 


§  673.  The  surveyor-general's  cer- 
tificate as  to  expendi- 
tures. 


§  670.  Application  for  survey. — The  official  survey- 
is  the  initial  step  in  the  proceedings  for  the  acquisition 
of  mineral  patent  except  in  the  case  of  placers  upon 
surveyed  lands,  which  conform  to  legal  subdivisions. 
The  application  for  patent,  notice  thereof,  entry  and 
the  patent  itself  must  refer  to  and  comport  with  the 
official  survey.  It  constitutes  the  delimitation  of  the 
claim  upon  the  survey  records  of  the  land  department 
and  is  the  official  and  controlling  advice  of  the  locus 
and  extent  of  the  claim  for  which  patent  proceedings 
are  prosecuted.^  The  first  step  toward  securing  an 
official  survey  for  a  mining  claim  is  an  application  ad- 
dressed to  the  United  States  surveyor-general  of  the 
state  or  territory  in  which  the  claim  is  situated  for  an 
order  for  survey. 

This  application  must  be  in  writing,  signed  by  the 
applicant,  his  agent,  or  attorney,^  and  should  contain 
the  name  of  the  claimant,  the  name  of  the  location,  the 
state,  county,  and  mining  district  wherein  it  is  situ- 
ated, and  if  upon  surveyed  lands,  the  section,  township, 
and  range.  As  claimants  are  at  liberty  to  select,  for 
the  purpose  of  making  the  survey,  any  United  States 

1  Gilson  Asphaltum  Co.,  33  L.  D.  612. 

2  The  signature  must  be  in  writing,  not  typewritten.  Tipton  G.  M. 
Co.,  29  L.  D.  718.  The  surveyor-general's  office  provides  a  printed  form 
on  which   these  applications  are  usually  made. 

(1667) 


§  670  THE  SURVEY  FOR  PATENT.  1668 

deputy  authorized  to  act  in  the  land  district,^  the  ap- 
plication should  designate  the  deputy. 

The  application  must  be  accompanied  by  a  copy  of 
the  location  notice  or  certificate  upon  which  the  survey 
is  to  be  based,  duly  certified  by  the  officer  charged  by 
the  state  or  district  laws  with  recording  such  notices 
or  certificates,  and  if  there  is  more  than  one  location 
to  be  included  in  the  survey,  each  notice  of  location 
should  be  certified  to  separately.  If  any  amended 
locations  have  been  made,  the  notices  or  certificates 
of  such  must  also  be  supplied,  as  they  form  the  basis 
of  the  field  work  of  the  deputy  surveyor. 

Upon  filing  the  application,  the  claimant  is  furnished 
an  estimate  of  the  amount  of  fees  required  to  defray 
the  expenses  of  platting  and  other  work  in  the  sur- 
veyor-general's office.  The  amount  of  such  estimate 
must  be  deposited  with  some  assistant  United  States 
treasurer  or  designated  United  States  depositary,  to 
the  credit  of  a  special  fund  created  by  ''individual  de- 
positors for  surveys  of  the  public  lands."  Receipts 
for  such  deposit  are  issued  in  triplicate.  One  is  de- 
livered to  the  surveyor-general,  one  forwarded  to  the 
secretary  of  the  treasury  at  Washington,  and  the  other 
is  retained  by  the  claimant. 

The  government  has  no  concern  with  the  fees  of 
deputy  surveyors.*  The  claimant  adjusts  the  com- 
pensation with  the  deputy,  the  commissioner  of  the 
general  land  office  having  the  power  to  fix  the  maxi- 
mum rate.* 

3  Rev.  Stats.,  §  2334;  17  Stat.  95;  Comp.  Stats.  1901,  p.  1435;  5 
Fed.  Stats.  Ann.  49. 

4  In  re  Foote,  2  L.  D.  773;  Golden  Rule  Co.,  37  L.  D.  95. 

6  Golden  Rule  Co.,  37  L.  D.  95.  In  case  of  an  order  made  for  an 
amended  survey  of  a  mining  claim,  there  is  no  authority  for  requir- 
ing the  deputy  mineral  surveyor  to  execute  such  survey  without  further 
compensation.     In  re  Anderson,  26  L.  D.  575. 


1669  APPLICATION  FOR  SURVEY.  §  670 

Upon  tlie  filing  of  the  application,  accompanied  by 
the  certified  copies  of  location  notices  or  certificates, 
and  the  presentation  of  the  receipt  showing  that  the 
requisite  deposit  has  been  made,  the  surveyor-general 
issues  his  order  directed  to  the  deputy  mineral  sur- 
veyor authorizing  the  survey.  This  order  is  accom- 
panied by  copies  of  the  location  notices  filed  by  the 
claimant  with  the  surveyor-general. 

As  a  rule,  the  order  for  survey  issues  as  a  matter  of 
course.  Should  it  be  refused,  the  claimant's  only 
remedy  is  by  appeal  to  the  commissioner  of  the  gen- 
eral land  office. 

Where  two  or  more  locations  are  held  by  one  and  the 
same  person  or  association  of  persons,  which  locations 
are  contiguous,  a  survey  may  be  ordered  of  the  entire 
group." 

Claims  which  merely  corner  are  not  contiguous  and 
cannot  be  embraced  in  one  application.'^ 

A  single  application  may  embrace  and  a  single  pat- 
ent issue  for  placer  and  lode  claims  where  the  land  in- 
volved lies  in  one  body  or  piece,  has  been  claimed  or 
located  for  valuable  deposits,  and  the  several  claims 
have  a  common  ownership.* 

Where  properties  thus  consolidated  are  applied  for, 
the  applications  for  an  order  of  survey  should  enumer- 
ate all  the  locations  within  the  group  and  plainly  state 
the  facts  of  common  ownership  and  contiguity.  An 
entry  will  be  refused  at  the  land  office  where  any  of 
the  claims  are  shown  to  be  noncontiguous.*     Where  a 

«  Champion  M.  Co.,  4  L.  D.  362,  citing  St.  Louis  Smelting  Co,  v. 
Kemp,  104  U.  S.  636,  26  L.  ed.  875,  11  Morr.  Min.  Rep.  673;  In  re 
Mackie,  5  L.  D.  199. 

7  Hidden  Treasure  Cons.  Q.  M.,  35  L.  D.  485 ;  Tomera  Placer  Claim, 
33  L.  D.  560.     See,  also,  Min.  Reg.,  par.  12,  Appendix. 

8  Mayflower  G.  M.  Co.,  29  L.  D.  7. 

»  Apple  Blossom  Placer  v.  Cora  Lee  Lode,  21  L.  D.  438. 


§  671  THE  SURVEY  FOB  PATENT.  1670 

survey  of  an  aggregation  of  claims  is  sought,  it  is  of 
course  necessary  to  file  with  the  surveyor-general  cer- 
tified copies  of  all  location  notices  upon  which  a  claim 
to  any  of  the  locations  within  the  group  is  based,  and 
each  copy  should  be  certified  to  separately. 

Naturally  the  deposit  to  cover  expenses  for  office 
work  in  the  surveyor-general's  office  required  in  the 
case  of  group  applications  will  be  proportionately  lar- 
ger than  in  those  embracing  single  locations.  No  defi- 
nite rule  is  fixed,  however.  It  is  regulated  entirely  by 
the  circumstances  of  each  particular  case.  The  various 
surveyors-general  offices  have  schedules  of  the  deposits 
required  for  single  claims  and  groups,  but  these  are 
not  uniform  in  the  different  states.  Where  the  amount 
of  office  work  exceeds  the  estimate,  an  additional  de- 
posit may  be  called  for  before  final  approval  of  the 
survey,  and  if  the  original  deposit  is  not  entirely  con- ' 
sumed,  the  applicant  is  entitled  to  a  refund  of  the  un- 
used balance.^" 

§  671.  The  survey  of  lode  claims. — It  is  not  our 
purpose  to  deal  minutely  with  the  manner  in  which 
mineral  surveys  are  to  be  made.  The  land  department 
supplies  the  deputy  surveyors  with  complete  manuals 
of  instruction  for  their  guidance,"  to  which  they  will 
resort  in  case  of  doubt,  rather  than  to  a  treatise  upon 
mining  law.  There  are  a  few  elements,  however,  of 
greater  or  less  importance  upon  which  the  validity  of 
subsequent  proceedings  may  depend,  which  may  be  ap- 
propriately noted. 

The  surveyor  cannot  make  a  location  for  the  claim- 
ant."    His  functions  are  limited  to  a  survey  of  one 

10  In  re  Mackie,  5  L.  D.  199. 

11  See,  also,  paragraphs  34r-38  and  12&-169  of  Mining  Regulations. 

12  See  Min.  Reg.,  par,  35. 


1671  THE  SURVEY  OF  LODE  CLAIMS.  §  671 

already  made.  He  determines  the  situs  and  bound- 
aries of  the  location  from  the  notices,  original  and 
amended,  copies  of  which  accompany  the  order  of  sur- 
vey, and  from  an  examination  of  the  ground  and  sur- 
face markings  referred  to  in  the  notices.  He  cannot 
disregard  these.  He  is  strictly  charged  under  instruc- 
tions from  the  land  department  that  surveys  of  min- 
ing claims  must  be  made  in  strict  conformity  to  the 
lines  established  by  the  original  (or  amended,  as  the 
case  may  be)  location  as  recorded  and  marked  on  the 
ground." 

Should  he  fail  to  include  within  his  survey  all  that 
was  properly  claimed  and  embraced  within  the  loca- 
tion, the  claimant  may  have  the  error  corrected  by  a 
resurvey." 

Many  difficulties  encountered  in  the  progress  of 
patent  proceedings  are  due  to  imperfect  notices  and 
insufficient  or  irregular  marking  of  the  location  in  the 
first  instance.  These  may  all  be  avoided  by  rectifying 
lines  by  an  informal  or  unofficial  survey,  and  the  mak- 
ing of  an  amended  notice  of  location  prior  to  applying 
for  an  order  for  survey}^  A  survey  cannot  be  based 
upon  an  amended  notice  of  location  made  after  the 
survey  is  ordered,^*  without  applying  for  an  amended 
order,  which  is  permissible  under  the  regulations." 

13  Lincoln    Placer,    7   L.    D.    81;    Circ.    Instructions,    Nov.    20,    1873; 
Copp's  Min.  Lands,  2d  ed.,  p.  58;   Commrs.  Letter,  1   Copp's  L.  0.  12. 
1*  Basin  M.  &  C.  Co.  v.  White,  22  Mont.  147,  55  Pac.  1049,  1050. 

15  Aine,  §  396. 

16  Rose  Lode  Claims,  22  L.  D.  83;  Tipton  G.  M.  Co.,  29  L.  D.  718. 

17  W^here  an  application  for  patent  has  been  allowed  to  proceed  to 
entry,  this  constitutes  a  waiver  of  any  additional  rights  acquired  by 
amendment  of  the  original  location,  even  though  the  amendment  may 
have  been  made  prior  to  the  entry.  The  additional  tract  must  be  re- 
garded as  having  been  embraced  in  an  independent  location,  subject  to 
all  of  the  requirements  of  the  law.     Gilson  Asphaltum  Co.,  33  L.  D.  612. 


§  671  THE  SURVEY  FOR  PATENT.  1672 

Of  course,  slight  variations  from  the  lines  as  orig- 
inally marked  would  not  vitiate  a  survey.^®  The  sur- 
veyor may  draw  in  the  end-lines  to  make  them  paral- 
lel/^ and  is  permitted  to  cast  off  the  area  in  excess  of 
the  statutory  limit,  by  moving  the  monuments  and 
stakes.^" 

The  survey  must  describe  the  locus,  with  reference 
to  the  lines  of  public  surveys,  by  a  line  connecting  a 
corner  of  the  claim  with  the  nearest  public  corner  of 
the  United  States  surveys,^^  unless  such  claim  be  on 
unsurveyed  lands  at  a  distance  of  more  than  two  miles 
from  such  public  corner,  in  which  latter  case  it  should 
be  connected  with  a  mineral  monument." 

Experience  has  demonstrated  that  this  connecting  or 
''tie"  line  is  frequently  established  by  calculation,'^ 
and  in  many  instances  is  erroneous  in  either  the  call  ^ 
for  distance  or  direction.  In  platting  surveys  in  the 
surveyor-general's  office  the  tie  line  reported  by  the 
deputy  is  naturally  assumed  to  be  mathematically  cor- 

18  Tipton  G.  M.  Co.,  29  L.  D.  718. 

19  Doe  V.  Sanger,  83  Cal.  203,  23  Pac.  365,  369;  Doe  v.  Waterloo  M. 
Co.,  54  Fed.  935,  941;  Philadelphia  v.  Pride  of  the  West,  3  Copp's  L. 
O.  82. 

20  In  re  Empy,  10  Copp's  L.  0.  102;  Howeth  v.  SuUenger,  113  Cal. 
547,  552,  45  Pac.  841;  ante,  §  362.  For  an  instance  of  this  character, 
see  Golden  Eeward  M.  Co.  v.  Buxton  M.  Co.,  79  Fed.  868,  877. 

21  See  Hallett  and  Hamburg  Lodes,  25  L.  D.  104;  In  re  McCarthy, 
14  L.  D.   105. 

22  Gen.  Min.  Keg.,  par.  36,  Appendix;  In  re  Dodge,  6  Copp's  L.  O. 
122. 

The  manner  of  constructing  these  mineral  monuments  is  provided 
for  in  the  "Manual  of  Instruction."  Manual  of  1895,  pars.  15,  16, 
17;  In  re  Cavanah,  8  Copp's  L.  0.  5. 

In  re  Standart,  25  L.  D.  262,  the  requirement  was  waived,  the  con- 
necting line  being  more  than  two  miles. 

23  Though  paragraph  129  of  Mining  Regulations  (see  Appendix) 
now  provides  that  the  surveyor  is  precluded  from  calculating  the  con- 
nections to  corners  of  the  public  survey. 


1673  THE   SURVEY   OF  LODE   CLAIMS.  §  671 

rect.  Subsequent  surveys  of  adjoining  or  adjacent 
claims  frequently  develop  the  erroneous  position  of  the 
prior  tie  line,  and  the  result  is  a  "paper  conflict"  on 
the  plats  in  the  surveyor-general's  office,  although 
there  are  no  such  conflicts  on  the  ground.  Under  such 
circumstances  the  former  custom  of  the  commissioner 
of  the  general  land  office  was  to  hold  up  the  second 
survey,  and  call  on  the  claimant  and  patentee  under  the 
prior  erroneous  survey  to  surrender  his  patent,  pro- 
vided the  claimant  had  already  been  granted  a  patent, 
and  to  commence  patent  proceedings  anew.  Fre- 
quently the  patentee  would  refuse  to  do  so,  preferring 
to  stand  on  his  patent,  thus  creating  an  embarrassment 
which  was  difficult  of  adjustment. 

Whenever  this  situation  has  been  presented  to  the 
courts,  the  erroneous  tie  line  has  been  treated  as  a  false 
call,  which  can  be  disregarded  where  the  position  of 
the  claim  as  actually  situated  and  monumented  on  the 
ground  can  be  determined." 

The  rulings  of  the  land  department  on  this  question 
led  to  the  passage  of  an  act  of  congress  amending  sec- 
tion 2327  of  the  Revised  Statutes,-^  which  requires  full 
effect  to  be  given  to  the  lines  actually  marked,  defined 
and  established  upon  the  ground  by  the  monuments  of 
the  official  survey,  and  in  case  of  any  conflict  between 
the  monuments  of  patented  claims  and  the  descriptions 
contained  in  the  patents,  "the  monuments  on  the 
ground  shall  govern  and  erroneous  or  inconsistent  de- 
scriptions or  calls  in  the  patent  descriptions  shall  give 
way  thereto." 

24  Galbraith  v.  Shasta  Iron  Co.,  143  Cal.  94,  76  Pac.  901,  902;  Bell 
V.  Skillicorn,  6  N.  M.  399,  28  Pac.  768,  769;  Cullacott  v.  Cash  G.  M. 
Co.,  8  Colo.  179,  6  Pac.  211,  15  Morr.  Min.  Rep.  392. 

25  33  Stats,  at  Large,  p.  545;  Comp.  Stats.  (Supp.  1911),  p.  611; 
10  Fed.  Stats.  Ann.  235. 


§  671  THE  SURVEY  FOR  PATENT.  1674 

This  is  but  a  statutory  confirmation  of  the  law  as 
previously  construed  by  the  courts,  and  the  practice 
of  the  land  department  is  now  in  accord  with  these 
principles.^® 

This  statute  relates  exclusively  to  the  determination 
of  the  situs  of  the  particular  tracts  conveyed  by  patent, 
and  does  not  in  any  way  modify  or  affect  the  require- 
ments governing  notices  of  application  for  patent  or 
excuse  defects  or  irregularities  in  such  notices." 

Where  a  survey  is  ordered  of  a  composite  or  group 
of  several  contiguous  locations,  the  boundaries  of  each 
location  must  be  shown;  ^'  but  the  former  practice  was 
to  the  contrary.  Each  claim  in  the  group  should  be 
tied  to  a  public  land  corner  or  a  mineral  monument.^' 
Undoubtedly  the  land  department  may  require  each 
integral  part  of  the  composite  to  be  delineated.  This 
is  necessary  to  enable  it  to  pass  upon  the  question 
of  contiguity,  as  well  as  to  determine  whether  the  ex- 
penditures made  in  the  development  of  a  common  sys- 
tem should  be  applied  to  one  or  more  claims  in  the 
group,  for  which  purpose  the  relative  position  of  each 
claim  is  important.^" 

26  Sinnott  v.  Jewett,  33  L.  D.  91;  Drogheda  &  West  Monroe  Exten- 
sion Claim,  33  L.  D.  183;  United  States  Min.  Co.  v.  Wall,  39  L.  D. 
546;   see,  also,  paragraph   147  of  Mining  Regulations. 

27  In  re  Peck,  34  L.  D.  682. 

28  In  re  Mackie,  5  L.  D.  199;  Golden  Sun  M.  Co.,  6  L.  D.  808;  Ar- 
gillite  Ornamental  Stone  Co.,  29  L.  D.  585;  Gen.  Min.  Reg.,  par.  30, 
Appendix. 

29  Juno  and  Other  Lode  Claims,  37  L.  D.  365. 

30  It  has  been  held  that  a  patent  may  be  issued  describing  the  ex- 
terior boundaries  of  the  composite  and  eliminating  the  interior  lines 
of  the  individual  locations.  Carson  City  G.  &  S.  M.  Co.  v.  North  Star 
M.  Co.,  73  Fed.  597,  600;  affirmed,  83  Fed.  658,  28  C.  C.  A.  333,  19 
Morr.  Min.  Rep.  118;  St.  Louis  Smelting  Co.  v.  Kemp,  104  U.  S.  636, 
26  L.  ed.  875,  11  Morr.  Min.  Rep.  673.  See,  also,  Peabody  G.  M.  Co. 
V.  Gold  Hill  M.  Co.,  Ill  Fed.  817,  820,  49  C.  C.  A.  637,  21  Morr.  Min. 
Rep.  591. 


J 675  THE  SURVEY   OF  LODE   CLAIMS.  §  671 

The  survey  must  show  the  area  of  the  conflict  with 
every  prior  official  survey ; "  otherwise  the  plat  will 
not  be  approved."  Unofficial  surveys,  however,  may 
be  ignored. ^^ 

A  mining  claim  legally  located  may  be  surveyed  ac- 
cording to  the  lines  of  the  location  as  marked  on  the 
ground,  even  though  the  surveyed  lines  may  in  part  or 
in  whole  fall  upon  patented  lands.  A  patent  issued 
upon  such  survey  will  exclude  all  lands  within  the  lines 
of  the  survey  which  are  also  included  in  the  prior 
patent.^*  This  follows  from  the  principles  discussed 
in  previous  sections. ^° 

The  regulations  of  the  land  department  require  that 
the  course  and  length  of  the  vein  should  be  marked 
upon  the  plat,^"  although  this  requirement  is,  in  our 
judgment,  unnecessaiy.  Such  marking  is  not  evidence 
of  the  true  position  of  the  vein.^°* 

The  position  of  the  lode  within  the  diagram  will  be 
presumed,  for  executive  purposes,  to  be  in  the  center 
and  running  in  a  straight  line,  and  in  the  absence  of 
other  proof,  the  discovery  point  is  held  to  be  the  center 
of  the  vein  on  the  surface."  If  the  course  of  the  vein 
diverges  from  a  straight  line,  the  applicant  should  in- 
dicate the  direction  and  adjust  his  survey  accord- 
ingly.'^ 

Upon  completion  of  the  survey,  the  deputy  forwards 
to  the  surveyor-general  the  field-notes,  accompanied  by 

81  Thor  Mine,  5  Copp's  L,  O.  51;   Russell  Lode,  5   Copp's  L.  0.   18. 
See  Min.  Reg.,  pars.  38,  147,  149  and  153,  Appendix. 
32  Grand  Dipper  Lode,  10  Copp's  L.  0.  240. 
88  Wisconsin  Mfg.  Co.  v.  Cooper,  10  Copp's  L.  O.  69. 
84  Mono  Fraction  Lode  Claim,  31  L.  D.  121. 
86  §§  363,  363a. 

86  Min.   Reg.,   par.    133,   Appendix. 
86*  Post,  §  780. 

87  Min.  Reg.,  par.  133,  Appendix. 
«8  Bimetallic  Mine,  15  L.   D.  309. 


§  671  THE  SURVEY  FOR  PATENT.  1676 

a  preliminary  plat,'°  together  with  a  report  *°  of  the 
manner  in  which  the  order  was  executed,  a  detailed 
statement  of  the  nature  and  character  of  improvements 
found  upon  the  premises,  and  an  estimate  of  their 
value.*^ 

If  the  value  of  the  improvements  is  less  than  five 
hundred  dollars  for  each  claim  at  the  time  of  the  sur- 
vey, the  deputy  surveyor  may  file  with  the  surveyor- 
general  supplemental  proof  showing  that  the  requisite 
expenditure  has  been  made  prior  to  the  expiration  of 
the  period  of  publication  of  notice  of  application  for 
patent.*^ 

In  case  the  survey  is  of  a  composite  or  group  of 
claims,  and  it  is  claimed  that  work  done  upon  one  was 
for  the  benefit  of  all,  in  furtherance  of  a  common  sys- 
tem of  development,  or  where  work  has  been  done  be- 
yond the  limits  of  a  claim  or  group  of  claims  for  the 
purpose  of  development,  the  report  of  the  deputy 
should  show  all  the  facts  from  which  the  surveyor- 
general,  and  the  officers  of  the  land  department  may 
clearly  conclude  that  the  claim  or  claims  are  entitled 
to  credit  for  the  work  so  done." 

Where  application  for  patent  is  made  for  one  claim, 
and  the  only  improvements  are  upon  an  adjoining 
claim  not  embraced  in  the  application,  it  must  be 
clearly  shown  that  improvements  so  made  tend  to  de- 

39  Min.  Reg.,  par.  161,  Appendix. 

40  The  locus  of  a  mining  claim  should  be  fixed  with  mathematical 
accuracy,  as  weU  in  the  report  of  the  survey  as  upon  the  surface  of 
the  earth.  In  re  Castner,  17  L.  D.  565;  Wright  v.  Sioux  Cons.  M.  Co., 
29  L.  D.  154. 

41  Min.  Beg.,  pars.  49,  156  and  157. 

42  Min.   Reg.,   par.    160,   Appendix. 

43  Andromeda  lK)de,  13  L.  D.  146.     See  post,  §  673. 


1677  THE   SURVEY   OF   LODE    CLAIMS.  §  671 

velop  the  claim  applied  for  and  the  certificate  of  the 
surveyor-general  to  this  effect  must  be  obtained.'* 

Where  insufficient  work  has  been  done  within  the 
limits  of  one  or  more  claims  to  entitle  them  to  be  pat- 
ented, considered  separately,  but  sufficient  has  been 
done  on  others  within  the  group  to  entitle  the  entire 
group  to  be  entered,  the  surveyor  should  make  an  ap- 
portionment, so  that  each  claim  may  be  credited  with 
the  statutory  amount ;  that  is,  five  hundred  dollars  to 
each." 

Upon  the  return  of  the  field-notes  and  report  to  the 
survey or-general,  they  are  examined  and  officially 
platted,  and  if  found  correct,  the  plat  and  field-notes 
are  approved.  The  surveyor-general  prepares  an 
original  plat,  which  is  forwarded  to  the  general  land 
office  and  photo-lithographed,  and  the  original  plat  and 
three  copies  are  returned  to  the  surveyor-general,  to 
be  disposed  of  in  accordance  with  paragraph  34  of  the 
Mining  Regulations." 

In  approving  mineral  surveys  the  surveyor-general's 
office  is  not  concerned  with  the  fact  that  surface  con- 
flicts are  shown  with  prior  surveys.  While  these 
conflicts  should  be  noted,  the  respective  rights  of  the 
parties  to  the  conflict  area  involve  questions  of  title 
which  cannot  be  passed  upon  by  the  surveyor-general. 
They  are  the  subject  of  adverse  claims,''  if  unpatented. 
If  patented,  the  area  in  conflict  will  be  excluded  in  the 
junior  patent  when  issued. 

**  Clark's  Pocket  Quartz  Mine,  27  L.  D.  351;  Copper  Glance  Lode, 
29  L.  D.  542;  Zephyr  Lode,  30  L.  D.  510;  post,  §   673. 

<5  For  a  discussion  of  the  manner  of  apportionment,  see  §  673,  post. 

<6  Instructions,  July  29,  1911,  40  L.  D.  21(5.  Amended  in  so  far  as 
it  applies  to  Alaska,  41  L.  D.  294.  A  certain  number  of  photo-litho- 
graphic copies  are  also  furnished  the  surveyor-general  for  sale  at  thirty 
cents  each. 

4T  Commrs.  Letter,  8  Copp's  L.  O.  104;  5  Copp's  L.  0.  18,  51. 


§  672  THE  SURVEY  FOR  PATENT.  1678 

The  claimant  is  furnished  with  a  set  of  the  approved 
field-notes  and  copies  of  the  plat,  for  filing  in  the  local 
land  office  and  posting  upon  the  claim.  A  copy  of  the 
plat  is  also  transmitted  by  the  surveyor-general  to  the 
register  of  the  land  office.*^ 

Should  the  surveyor-general  refuse  to  approve  a 
survey,  an  appeal  lies  to  the  commissioner  of  the  gen- 
eral land  office,  and  from  him  to  the  secretary  of  the 
interior. 

§  672.  The  survey  of  placer  claims — Descriptive  re- 
port.— Where  placer  claims  are  upon  surveyed  lands 
and  conform  to  legal  subdivisions,  no  further  survey  or 
plat  is  required.  In  such  cases  the  surveyor-general 
has  no  duty  to  perform."  Where  such  claims  are  upon 
unsurveyed  lands,  or  being  upon  surveyed  lands  it  is 
not  practicable  to  make  them  conform  to  the  public  sur- 
veys,°°  a  mineral  survey  is  required,  as  in  the  case  of 
lode  claims. ^^  The  fractional  lots  on  the  north  and 
west  of  a  township,  or  those  made  fractional  by  seg- 
regation and  patenting  of  lode  mining  claims,  are  not 
capable  of  legal  subdivision.  One  locating,  for  in- 
stance, the  east  half  of  lot  1  in  a  given  township  would 
be  compelled  to  have  an  official  survey  made."  In  ob- 
taining the  order  for  such  survey,  and  in  executing  it, 
the  same  formalities  are  observed  as  in  those  of  lodes, 
with  such  slight  modifications  as  are  obviously  neces- 
sary by  reason  of  the  differences  between  the  two 
classes  of  deposits. 

«  Min.  Reg.,  par.  34,  Appendix,  and  Instructions,  40  L.  D.  216. 

*9  Gen.  Min.  Reg.,  par.  58,  Appendix;  In  re  Gerhauser,  7  L.  D.  390 j 
Draper  v.  Wells,  25  L.  D.  550. 

60  Ante,  §  448. 

81  Min.  Reg.,  par.  58,  Appendix. 

62  Holmes  Placer,  29  L.  D.  368;  Chicago  Placer  Min.  Claim,  34  L. 
D.  9. 


1679  THE  SURVEY  OF  PLACER  CLAIMS.  §  672 

In  the  case  of  placers,  the  deputy  is  required  to  add 
to  his  field-notes  a  descriptive  report  upon  the  quality 
and  composition  of  the  soil,  the  kind  and  amount  of 
timber  and  other  vegetation  growing  thereon,  the  locus 
and  size  of  streams,  and  such  other  matters  as  may 
appear  upon  the  surface  of  the  claim.''  He  is  also  re- 
quired to  report  as  to  the  use  or  adaptability  of  the 
claim  for  placer  mining;  whether  water  has  been 
brought  upon  it  in  sufficient  quantity  to  mine  the  same, 
or  whether  it  can  be  procured  for  that  purpose, — also 
the  proximity  of  the  claim  to  the  centers  of  trade  or 
residence  and  neighboring  well-known  lode  systems  or 
individual  lodes,  the  character  and  extent  of  all  sur- 
face and  underground  workings,  whether  placer  or 
lode,  those  works  and  expenditures  made  by  claimant 
and  the  true  situation  of  all  mines,  salt  licks,  salt 
springs,  and  millsites.^*  This  report  must  be  under 
oath,  and  is  required  to  be  corroborated,"  and  in  the 
absence  of  anything  attacking  the  boiia  fides  of  the 
claimant  is  sufficient  to  establish  the  character  of  the 
land.^« 

"Where  gulch  claims  which  do  not  conform  to  legal 
subdivisions  are  sought  to  be  patented,  the  department 
requires  the  deputy  surveyor  to  report  on  the  topo- 
graphic conditions  and  furnish  such  information  as  will 
enable  the  department  to  determine  whether  noncon- 
formity is  reasonable  and  justified.  The  report  must 
be  verified  by  the  certificate  of  the  surveyor-general." 

63  Min.  Reg.,  par.   167,  Appendix. 
6*  Id.,  par.  167. 
66  Id.,  par.  167. 

66  Lincoln  Placer,  7  L.  D.  81. 

67  Wood  Placer  Min.  Claim  (on  review),  32  L.  D.  401.  For  a  full 
discussion  of  this  question  of  conformity  of  placer  claims  to  legal  sub- 
divisions, see  ante,  §§  448,  448a,  448b.     See,  also,  Min.  Beg.,  par.  30. 


§  673  THE  SURVEY  FOR  PATENT.  ,  1680 

If  a  lode  exists  within  the  placer,  and  is  claimed  by 
the  placer  claimant,  it  must  be  surveyed  the  same  as  if 
it  were  elsewhere  situated,^®  although  the  plats  of  the 
placer  and  lode  surveys  may  be  combined  and  consti- 
tute but  one  plat. 

§  673.  The  surveyor-general's  certificate  as  to  ex- 
penditures.— The  claimant  is  required  at  the  time  of 
filing  his  application  for  patent  in  the  local  land  office, 
or  at  any  time  thereafter  within  the  period  of  publica- 
tion of  the  notice  of  such  application,  to  file  with  the 
register  a  certificate  of  the  United  States  surveyor- 
general,  that  five  hundred  dollars'  worth  of  labor  has 
been  expended  or  improvements  made  upon  the  claim 
by  the  claimant  or  his  grantors.^^ 

This  is  a  question  between  the  applicant  and  the  gov- 
ernment. The  courts  have  no  concern  with  it  in  ad- 
verse suits.®°     It  is  a  matter  for  protest,  however. 

The  statutory  expenditure  required  as  a  prerequisite 
to  mineral  patent  must  be  shown  to  have  been  made 
upon  or  for  the  benefit  of  the  claim  as  presented  for 
patent.  If  within  an  excluded  conflict  area  it  will  not 
be  accepted."  Where  application  is  made  by  a  reloca- 
tor,  work  done  by  the  original  locator  cannot  be  esti- 
mated.®'' 

68  Ante,  §§  413-415. 

59  Eev.  Stats.,  §  2325;  17  Stat.  92;  Comp.  Stats.  1901,  p.  1429;  5 
Fed.   Stats.  Ann.  31;   Min.  Reg.,  pars.  48,  49,  Appendix. 

60  Btolp  V.  Treasury  Gold  Min.  Co.,  38  Wash.  619,  80  Pac.  817,  818. 
See,  also,  Wilson  v.  Freeman,  29  Mont.  470,  75  Pac.  84,  86,  68  L.  R. 
A.  833. 

61  Hidden  Treasure  Lode,  29  L.  D.  156;  S.  C,  on  review,  29  L.  D. 
315. 

62  Yankee  Lode,  30  L.  D.  289;  Eussell  v.  Wilson  Creek  Cons.  M.  Co., 
30  L.  D.  321. 


1681  CERTIFICATE  OF  E^XPENDITURES.  §  673 

Improvements  made  prior  to  the  location  will  not  be 
available,®^  but  a  common  improvement  commenced 
prior  to  the  location  of  some  of  the  claims  of  a  group 
may  be  extended  for  the  benefit  of  the  later  locations.'* 
Parties  holding  separate  locations  cannot,  by  consol- 
idating the  title,  claim  that  improvements  made  on 
one  of  them  prior  to  the  consolidation  shall  be  cred- 
ited to  the  other  claims  of  the  consolidation."  The 
expenditure  must  be  shown  as  to  all  claims  involved, 
including  those  held  without  location  under  section 
twenty-three  hundred  and  twenty-two  of  the  Revised 
Statutes.'*'' 

It  was  at  one  time  held  by  the  department  that  the 
direction  of  the  statute  as  to  the  time  within  which  the 
certificate  of  the  surveyor-general  should  be  supplied 
was  mandatory,  and  that  a  certificate  filed  after  the 
period  of  publication  would  not  be  considered."  Later 
rulings,  however,  express  the  view  that  the  specifica- 
tion as  to  the  time  of  filing  the  certificate  is  merely 
directory.*** 

The  statutory  requirement  that  improvements  of  the 
required  value  must  have  been  completed  prior  to  the 
expiration  of  the  period  of  publication  is  mandatory, 
however.®^ 

63  Tough  Nut  No.  2  and  Other  Lode  Claims,  36  L.  D.  9. 
«*  Aldebaran  Mining  Co.,  36  L.  D.  551. 

65  In  re  Head,  40  L.  D.   135. 

66  Barklage  v.  Russell,  29  L.  D.  401. 

67  Milton  V.  Lamb,  22  L.  D.  339;  White  Cloud  C.  M.  Co.,  22  L.  D. 
252;  Little  Pet  Lode,  4  L.  D.  17. 

68  Draper  v.  Wells,  25  L.  D.  550;  Floyd  v.  Montgomery,  26  L.  D. 
122;  Hidden  Treasure  Lode,  29  L.  D.  156;  S.  C,  on  review,  29  L.  D. 
315;  Neilson  v.  Champagne  M.  Co.,  29  L.  D.  491.  See  Min.  Reg.,  par. 
160. 

69  Stemmons  v.  Hess,  32  L.  D.  220;  Wood  Placer  M.  Co.  (on  review), 
32  L.  D.  401.  The  statement  is  made  in  Wilson  v.  Freeman,  29  Mont. 
470,  75  Pac.  84,  68  L.   R.  A.  833,  that  patent  improvements  might   be 

Lindley  on  M. — 106 


§  673  THE  SURVEY  FOR  PATENT.  1682 

Ordinarily,  this  certificate  is  appended  by  tlie  sur- 
veyor-general to  tlie  approved  field-notes,  wMch  are 
delivered  to  the  claimant.  This  certificate  is  based 
upon  the  report  of  the  deputy  surveyor/" 

In  regard  to  the  amount  of  expenditures  necessary 
to  be  shown  where  application  is  made  for  a  consolida- 
tion of  claims,  the  land  department  at  one  time  ruled 
that  where  an  application  for  patent  embraced  several 
locations  or  claims  held  in  common,  constituting  one 
entire  claim,  whether  lode  or  placer,  an  expenditure  of 
five  hundred  dollars  under  section  twenty-three  hun- 
dred and  twenty-five  of  the  Eevised  Statutes  upon  such 
entire  claim  embraced  in  the  application  would  be 
sufficient,  and  need  not  be  shown  upon  each  of  the  loca- 
tions included  therein/^ 

By  subsequent  rulings,  however,  this  has  been 
changed,  and  the  applicant  is  called  upon  to  produce 
the  certificate  of  the  surveyor-general  showing  that  an 
amount  equal  to  five  hundred  dollars  for  each  location 
has  been  so  expended  upon  or  for  the  benefit  of  the 
entire  group."     The  reasons  supporting  the  changed 

completed  at  any  time  before  actually  making  final  entry  in  the  land 
office.  This  is  clearly  incorrect,  especially  in  view  of  the  fact  that, 
as  the  decision  also  holds,  "The  court  has  nothing  to  do  with  the  ques- 
tion  " 

70  Min.   Eeg.,  pars.  49,  50,  Appendix. 

71  Good  Keturn  M.  Co.,  4  L.  D.  221,  abrogating  the  departmental 
regulation  of  December  9,  1882;  Giro.  Instructions,  Dec.  14,  1884,  4  L. 
D.  374;  Id.,  Mar.  24,  1887,  8  L.  D.  505;  Andromeda  Lode,  13  L.  D. 
146. 

72  Min.  Eeg.,  par.  48;  In  re  Hale,  28  L.  D.  524;  Tenderfoot  Lode, 
30  L.  D.  200;  Mayflower  G.  M.  Co.,  29  L.  D.  7;  Gillis  t.  Downey,  29 
L.  D.  83;  Brady's  Mortgagee  v.  Harris,  29  L.  D.  89;  Neilson  v.  Cham- 
pagne M.  Co.,  29  L.  D.  491;  In  re  Dawson,  40  L.  D.  17.  In  Miller  v. 
Chrisman,  140  Cal.  440,  98  Am.  St.  Bep.  63,  73  Pac.  1083,  1085,  74  Pae. 
444  (S.  C,  in  error,  197  U.  S.  313,  25  Sup.  Ct.  Kep.  468,  49  L.  ed.  770;  but 
point  not  discussed),  it  is  said  arguendo  that  when  a  placer  claim  is- 
located  by  an  association  of  persons,  e.  g.,  an  area  of  one  hundred  and 


1683  CERTIFICATE  OF  EXPENDITURES.  §  673 

ruling  are  fully  set  forth  in  an  opinion  prepared  by 
Assistant  Attorney-General  Van  Devanter." 

There  is  no  legal  justification  for  an  arbitrary  appor- 
tionment by  the  surveyor-general  of  any  particular 
segment  of  a  common  or  "group"  improvement  for 
the  benefit  of  any  individual  claim.  In  legal  contem- 
plation the  term  "common  improvement"  imports  a 
single  distinct  entity,  not  subject  to  physical  subdi- 
vision or  apportionment.  The  benefit  of  such  an  im- 
provement attaches  to  and  becomes  available  for  the 
claims  as  a  body  and  not  individually.  Each  claim 
benefited  is  entitled  to  its  proportion  of  the  value  of 
the  entire  improvement.^* 

The  patenting  of  a  portion  of  the  claims  in  the  group 
and  their  subsequent  disposal  will  not  prevent  the 
patenting  of  the  remainder  of  the  claims  based  upon 
their  participation  in  such  improvement  at  the  time  of 
its  construction." 

Where  other  claims  are  located  after  the  construc- 
tion of  a  common  improvement  and  forming  an  addi- 
tion to  the  original  group,  such  common  improvement 
may  be  extended  for  the  benefit  of  the  additional 
claims,  and  work  of  the  value  of  five  hundred  dollars 
only  for  each  such  additional  claim  need  be  per- 
formed.''® 

Where  a  portion  only  of  the  claims  composing  a 
group  are  applied  for  and  a  common  improvement  ben- 
efiting the  entire  group  is  reUed  on  for  patent  expend- 

Bixty  acres,  five  hundred  dollars  expended  on  the  location  is  sufficient, 
whereas  if  there  were  eight  separate  twenty-acre  individual  locators,  the 
amount  required  would  be  four  thousand  doUars. 

73  27  L.  D.  91. 

74  In  re  Carretto,  35  L.  D.   361. 

76  Mountain  Chief  No.  8  Lode  CTaim,  36  L.  D.  100. 
76  Aldebaran  Min.  Co.,  36  L.  D.  551. 


§  673  THE  SURVEY  FOR  PATENT.  1684 

itures,  the  department  should  be  fully  advised  as  to 
the  total  number  of  claims  in  the  group — of  their  com- 
mon ownership  and  relative  situations.  These  should 
ordinarily  be  delineated  upon  an  authenticated  plat, 
and,  according  to  unreported  decisions  by  the  commis- 
sioner, an  abstract  of  title  of  the  entire  group  furnished 
with  the  first  proceeding  involving  an  application  of 
credit  arising  from  the  common  improvement,  and 
should  be  referred  to  and  supplemented  in  each  subse- 
quent patent  proceeding  where  a  like  credit  is  sought 
to  be  established." 

In  determining  the  value  and  availability  of  the  im- 
provements, the  same  rules  should  be  followed  as  con- 
trol the  determination  of  value  of  the  annual  work." 

On  a  showing  made  of  an  expenditure  for  the  com- 
mon benefit  of  several  locations  embraced  in  one 
application,  the  department  will  not  undertake  to  de- 
termine whether  such  plan  of  development  will  be 
effective  or  not,  if  it  appears  that  the  expenditure  is 
made  in  good  faith  and  for  the  purpose  alleged." 

Where,  by  reason  of  insufficient  patent  improve- 
ments, one  of  the  claims  of  a  group  applied  for  is 
eliminated  from  the  patent  proceedings,  and  thereby 
the  contiguity  of  the  remainder  of  the  group  is  de- 
stroyed, nevertheless,  provided  due  publication  and 
posting  has  taken  place,  the  noncontiguous  portion  of 
the  group  remaining  will  be  allowed  to  proceed  to  entry 
and  patent.^" 

The  certificate  of  the  surveyor-general  is  not  binding 
upon  the  land  department;  but  unless  corrected  by  the 

77  In  re  Carretto,  35  L.  D.  361. 

78  Copper  Glance  Lode,   29  L.   D.   542.     See  Zephyr  Lode,   30   L.   D. 
510;  ante,  §  635. 

79  Hughes  V.  Ochsner,  26  L.  D.  540. 

80  In  re  Dawson,  40  L.  D.  17.  4 


1685  CERTIFICATE  OF  EXPENDITURES,  §  673 

department  prior  to  patent,  it  must  be  taken  as  con- 
clusive.^^ 

TMiere  a  group  application  is  made  by  several  co- 
owners,  each  applicant  must  be  shown  to  have  an  in- 
terest in  each  and  every  claim  supposed  to  be  benefited 
by  the  common  system  of  development.**^ 

In  the  case  of  placer  locations  applied  for  in  accord- 
ance with  legal  subdivisions,  the  proof  of  improve- 
ments must  consist  of  the  affidavit  of  two  or  more 
disinterested  witnesses. ^^ 

81  United  States  v.  Iron  S.  M.  Co.,  128  U.  S.  673,  685,  9  Sup.  Ct. 
Eep.  195,  32  L.  ed.  571.     See  United  States  v.  King,  83  Fed.  188,  191. 

82  Black  Lead  Liode  Extension,  32  L.  D.  595.  If  an  application  for 
patent  is  rejected  for  failure  to  present  a  proper  certificate  of  expendi- 
tures, it  may  be  renewed  by  refiling  and  commencing  publication  and 
posting  de  novo,  and  the  register  -will  mark  the  original  application  as 
"retiled,"  from  which  new  date  it  will  be  treated  as  a  pending  applica- 
tion, and  in  the  absence  of  a  date  of  refiling  the  first  date  of  the  new 
publication  will  be  treated  as  the  date  of  the  renewal.  Jawbone  Lode, 
34  L.  D.  72. 

83  Min.  Reg.,  par.  25,  Appendix. 


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